Specifically at issue is who signed the provision compelling arbitration or agreeing to release the center from liability. The reason this question is central is because if the person who signed was not authorized to do so on behalf of the patient, the contract is invalid,. That means plaintiff has the right to sue.
In some cases, if the patient personally signed the contract, was he or she legally fit to do so? Many times, the answer is no, and that too can work in a plaintiff’s favor.
This issue was recently underscored by The New York Times, which highlighted a 2009 case in which a nursing home resident was murdered by her roommate. Her son sought to hold the nursing home accountable for this violent act.
The report notes the victim celebrated her 100th birthday at her son’s home at a backyard gathering with extended family members in Massachusetts. A month later, the retired school cafeteria cook was found dead in her room. She had been strangled and suffocated with a plastic shopping bag. The culprit was her 97-year-old female roommate.
Sadly, this incident was not totally unforeseen. There had been a few minor arguments, but beyond that, it seemed as if the two women got along well. However, workers at the nursing home had described the perpetrator months before the murder as being unstable and, in medical notes, “at risk of harm to herself and others.”
The alleged killer was arrested and charged with murder, though because of her age and dementia, the court ruled she was unfit to stand trial for murder.
Now, more than six years later, the decedent’s only son is fighting for accountability from the nursing home. He notes the attacker had a known history of problems. Staffers knew she was a danger to others and recklessly chose to take no action. She should never, he said, have been living in the same room with his mother.
However, his case has been stalled numerous times because of an arbitration clause. A clause in her admissions paperwork indicated that any dispute with the nursing home – even for wrongful death – would have to be handled through private arbitration.
These agreements have proliferated extensively in recent years. Nursing homes fighting nursing home abuse lawsuits contend they are resolved more quickly and for less cost.
But it comes at a steep price for victims, who do not have the benefit of a public proceeding with a judge or jury. It also allows nursing home wrongdoing to be kept in secret, which means the details that emerge and even the outcome are usually not available for future trials against the same defendant where similar conduct may be alleged. That’s important because it can establish a pattern. Bringing such information to light also alerts others to the possibility of future abuse.
These clauses have become the norm over the last decade. It’s not just nursing homes, of course. Cell phone companies, credit card services and even retail outlets now often require arbitration as a term of service.
But signing away the right to sue a cell phone company isn’t quite the same as forcing new residents and loved ones to sign away the right to hold caregivers accountable for failing to protect our most vulnerable loved ones.
Judges have consistently ruled in favor of the clauses, often finding them legally binding.
This case out of Massachusetts will be telling because plaintiff has been able to convince the lower courts that the contract law on which the nursing home was relying was invalid.
He signed the arbitration agreement, and he did have health care by proxy for his mother. However, his lawyers have argued, he didn’t have the legal authority to sign an arbitration agreement on her behalf. A judge ruled in his favor in 2014.
This argument has been catching on, with appellate courts across the country tossing out these agreements on the basis of contract law.
If you suspect a loved ones has been victimized by nursing home abuse, but are concerned about an existing arbitration agreement, contact our offices today to learn more about how we can help.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract? Feb. 21, 2016, By Michael Corkery and Jessica Silver-Greenberg, The New York Times
More Blog Entries:
Nursing Home Lawsuit: Computer Error Led to Feeding Death, Feb. 26, 2016, Fort Lauderdale Nursing Home Abuse Lawyer Blog