Articles Tagged with nursing home negligence lawsuit

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Florida courts have been increasingly allowing nursing home negligence lawsuits to go to trial, despite the existence of nursing home arbitration agreements. Defendant nursing homes are looking to compel plaintiffs to resolve their dispute via arbitration, where outcomes are private and tend to favor the facility.gavel

The grounds on which a court may find an agreement unenforceable usually involve whether the agreement is “unconscionable.” That means the contract is so one-sided, it’s unfair to one party and violates public policy. It’s the kind of contract that leaves one party with no real, meaningful choice and typically arises due to the power imbalance between the two parties. So many of these nursing home arbitration agreements are signed by vulnerable patients or their loved ones upon admission – sometimes as a condition to admission. A contract can be unconscionable if there is:

  • Undue influence;
  • Duress;
  • Unequal bargaining power;
  • Unfair surprise.

Such an agreement may also be unenforceable if the person who signed it did not have the capacity or authority to do so. Elderly adults with dementia may not have the mental capacity to enter into legal agreements, but if their relatives are not expressly designated as their legal representative, they may not be able to legally sign on their loved one’s behalf.  Continue reading →

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The Florida Supreme Court has issued an opinion in a nursing home negligence lawsuit, tossing an arbitration agreement and the reasoning by the 3rd DCA that it was enforceable because the son signed on behalf of his father who lacked mental capacity. The court in Mendez v. Hampton Court Nursing Ctr. said the father’s mental capacity here did not matter because it didn’t change the son’s lack of legal standing to sign on his father’s behalf.gavel21

As we’ve seen in so many of these cases, the son signed a nursing home admission agreement – which included an arbitration provision – for his father when he was first admitted to the Miami-area facility back in 2009. But the son didn’t have legal power of attorney. The father likely couldn’t have legally signed that paperwork either because he lacked the mental capacity to do so, but that’s beside the point here. Later when a dispute arose and plaintiff alleged his father’s care had been negligent, the nursing home sought to enforce that arbitration agreement.

It was argued by defendant nursing home that the father’s lack of mental capacity meant the son was acting as his father’s representative. The trial court agreed with the nursing home and so too did the Third District Court of Appeals. But the state supreme court, in a 5-2 decision, reversed. The father’s mental state didn’t change the son’s legal power or somehow make the contract valid. Had the nursing home wanted to ensure the correct party was signing the document, they could have taken the matter to court, asked for the father to be declared mentally incompetent, had the court establish a legal representative and then asked that person to sign. Continue reading →

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