In an increasing number of places, mandatory nursing home arbitration agreements are being challenged. These agreements are binding contracts, but many people don’t realize that when they sign them as part of the admissions process to a nursing home, they are signing away their right to have any future disputes resolved in court. Instead, those disputes are funneled to an arbitrator, who is not required to follow the law. Proceedings aren’t public and arbitrators more often than not favor the nursing home. Even when damages are awarded to the plaintiff, the sum tends to be for far less than what plaintiff likely would have gotten if the case had gone to trial.
There are many reasons to fight back against enforcement of an arbitration agreement with a nursing home. That’s what some in Minnesota are doing, according to the Star Tribune. In one case, plaintiff believed she had a strong legal case against the nursing home where her father had lived before his sudden death at age 89. There was evidence the assisted living facility failed to respond in a timely manner when her father vomited numerous times and screamed for help while pointing to his badly swollen stomach. After several hours, eh died of complications related to a common hernia, something that was easily treatable had he received prompt medical attention.
When plaintiff sued the nursing home for this, they hit back with a motion to compel arbitration, pointing to an arbitration agreement signed when her father was first admitted to the facility. The nursing home claims the densely-worded contract requires the family to have the dispute resolved in arbitration, even though it involves a claim for wrongful death.
In Florida just last year, the Florida Supreme court ruled in a 5-2 decision against a nursing home that sought to compel arbitration following an alleged case of nursing home negligence that reportedly led to an elderly man’s death. As the Miami-Herald reported in that case, the court held that it would never enforce a contract when one party agrees to the contract under threat or duress, and thus it would not enforce a contract in which the was absent the party’s agreement altogether. Specifically, the patient lacked the mental capacity to give informed consent or make medical decisions for himself. Therefore, it was the man’s son who signed all of his admissions paperwork for him – including that arbitration agreement. However, while the son did indicate in those records that he was his father’s representative, he did not have the power of attorney.
Dissenting justices on that case expressed concern that lower courts would now be able to “arbitrarily disavow arbitration clauses.” Those justices wrote that the person who is now the plaintiff in this case was the person who signed the contract and therefore his father’s mental capacity isn’t at issue.
The majority disagreed, finding that because it was his father’s rights at issue, that fact was relevant. We’ll continue to see these types of claims play out in Florida courts, but with this precedent, nursing home abuse plaintiffs are going to have a better shot at success.
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Minn. victims of nursing home abuse challenge arbitration clauses, Jan. 29, 2017, By Chris Serres, Star Tribune
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