The troubling increase of mandatory arbitration agreements thrust before new residents at nursing home facilities across the country is the subject of this two-part blog series by our Vero Beach nursing home abuse attorneys.
While many facilities uphold these agreements as “mandatory,” the reality is that many of them are not and you won’t be denied admission if you choose to sign. (Agencies that do deny admittance on these grounds should be considered suspect from the start anyway.)
Arbitration agreements are problematic because they strip the patient and/or his loved ones of the right to seek redress in court if there is some lapse in the quality of care. Instead, claims are handled by professional arbitrators, and outcomes tend to be far more advantageous to the facilities than the patients.
The best way to avoid becoming ensnared in a nursing home arbitration agreement is simply not to sign one. Read carefully every document put before you during the admissions process, and make sure you aren’t forfeiting your legal right to pursue civil action should the facility act negligently.
But let’s assume you’ve already signed a nursing home arbitration agreement and now want to file suit. You are not without options.
The first of those is to argue that the agreement is invalid because the agreement was “unconscionable,” or unfair. Judges frequently toss arbitration agreements on these grounds, particularly when they contain a great deal of information and it’s determined that the clause wasn’t thoroughly explained.
The second way to overcome an arbitration agreement is to prove that either the person who signed it wasn’t competent to do so or that the family member who signed on that person’s behalf wasn’t legally qualified to do so.
It is this latter argument that was recently successful in two very similar Massachusetts cases in which plaintiffs sought to extricate themselves from arbitration agreements. The cases of Licata v. GGNSC Malden Dexter LLC and Johnson v. Kindred Healthcare, Inc. were both decided by the Massachusetts Supreme Court within a day of each other.
In the Licata case, the son of a woman admitted to a hospital for confusion designated by her to be his health care proxy, allowing him to make health care decisions in the event she became incapacitated and could not do so.
Several days later, the woman was discharged from the medical center and transferred to a nursing home facility. Upon her arrival, the woman was taken to her new room while her son was taken by the director to a separate office to complete her admissions documentations. At some point during this process, the director went to the woman’s room and spoke to her, informing her that her son was signing papers for her and they would discuss them later. However, the woman reportedly didn’t respond and didn’t appear to understand. At no other point was it noted that the documents were further discussed with the woman.
Among those documents signed by the son, in a space designated for the patient’s “legal representative,” was an arbitration agreement. The agreement was not considered a precondition for admission. The son signed it.
The following year, the woman suffered personal injuries while a resident at the center, which ultimately led to her death. We don’t know the details of the situation, but we know her son subsequently filed a wrongful death action. The nursing home requested a summary judgment in its favor on the grounds that the plaintiffs were bound by the arbitration agreement.
The trial judge would later find that while the arbitration agreement wasn’t unconscionable, the son lacked any authority to execute the agreement on his mother’s behalf. Therefore, the judge denied the nursing home’s motion.
The nursing home appealed, and the Massachusetts Supreme Court upheld it.
While a person designated a health care proxy may have the legal authority to make health care decisions for an individual, he or she may not have the authority to enter into other types of legal contracts for the incapacitated individual. The fact that the patient never fails to promptly disavow the unauthorized signature of these documents isn’t necessarily relevant, particularly when the patient may have been incapacitated or was never informed of the existence of such documents.
Similar arguments arose in the Johnson case. Here, it was the wife who, as health care proxy, signed the arbitration agreement on behalf of her husband, who was admitted to a nursing home facility.
During the course of his stay at the nursing home, he suffered severe burns and died as a result.
The nursing home sought to enforce the arbitration agreement and, initially, the lower court granted the nursing home’s request. However, the state supreme court later reversed this decision, holding that, again, a designation of health care proxy is not a license to make legal decisions – such as entering into an arbitration agreement – for the incapacitated party.
If you have questions about how to overcome a nursing home arbitration agreement in Florida, call us today.
Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Licata v. GGNSC Malden Dexter LLC, Jan. 14, 2014, Massachusetts Supreme Court
Johnson v. Kindred Healthcare, Inc., Jan. 13, 2014, Massachusetts Supreme Court
More Blog Entries:
As Boomers Enter Old Age, Staffing Shortage Poses Risk, Nov. 23, 2013, Vero Beach Nursing Home Abuse Lawyer Blog