It is becoming standard in many nursing home abuse and negligence cases to find defendants pushing to have claims settled in arbitration.
Often when nursing home patients are admitted, they and/or their relatives are bombarded with stacks of paperwork, which often include an “arbitration agreement,” binding parties who sign to resolve any disputes that arise from care before an arbitrator, rather than a judge.
What this paperwork often doesn’t clearly spell out is that by signing you are in effect signing away rights and protections and the ability to hold the company accountable for poor standards of care. It is possible – though not as likely – for plaintiffs to succeed in arbitration. Even so, damages tend to be more modest and settlements are often confidential, meaning there is no opportunity to warn others of the potential danger they may face when taking their loved ones to that facility.
Fortunately, our Hollywood nursing home abuse attorneys know many arbitration agreements are unenforceable for a number of reasons. Some judges determine patients are not in the proper state of mind to make legal decisions for themselves when they sign the documents. Other times, family members don’t have the proper legal authority to sign on behalf of the patient.
Then there are cases like Boler v. Security Health Care LLC, wherein the agreement purports to bind “any future legal representatives, heirs, successors, etc.” who might assert a claim against the care provider. Boler was originally an injury case brought by the patient. However, she died before the nursing home filed a motion to compel arbitration.
The patient’s children filed a petition to add survivor claims and claims of wrongful death. The trial judge in Oklahoma granted both motions. Defendant than pushed to have the claim arbitrated. In response, plaintiffs maintain they never signed an arbitration agreement in their personal capacity. Even if their mother’s underlying injury claims would have been subject to arbitration, their claims were separate and they were not bound by the agreement their mother signed.
The trial court ruled that, as a matter of law, a claim of wrongful death is a separate and distinct cause of action, and is derivative of a personal injury action only in the sense that decedent must have had a viable claim pending at the time of death. The judge declined to rule on the validity of the contract, but rather whether it was enforceable.
On appeal, the nursing home argued wrongful death claims are entirely derivative (of the underlying personal injury action), and therefore must be arbitrated, as the original plaintiff would have been required to do. Plaintiffs argued their wrongful death claim was only derivative in that decedent was required to have a legitimate pending claim at the time of death.
The Oklahoma Supreme Court sided with plaintiffs, finding that personal estate representatives and next-of-kin aren’t bound by arbitration agreements signed by patients, and further, their claim was not wholly derivative of their mother’s.
Although this decision doesn’t directly impact cases in Florida, it’s likely courts here facing similar situations will look closely at how high courts in other jurisdictions have decided, so it’s relevant precedent from that standpoint.
Our nursing home negligence lawyers are committed to fighting for justice for you and your loved ones.
Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Boler v. Security Health Care LLC, Sept. 30, 2014, Oklahoma Supreme Court
More Blog Entries:
Absher v. Momence Meadows Nursing Ctr. – Medicare Fraud and the Potential for Nursing Home Abuse, Oct. 18, 2014, Hollywood Nursing Home Abuse Lawyer Blog