The White House is pushing to scuttle a rule that would have paved the way for more nursing home residents to take legal action against nursing homes for poor care, abuse and neglect. Such injuries for nursing home negligence are actionable under state personal injury laws. However, the Obama administration had made it easier for plaintiff’s by preventing nursing homes from mandating new patients agree to arbitration – as opposed to the court system – to resolve any future disputes.
Many nursing homes require new patients, patient representatives and family members to sign arbitration agreements as a condition of being admitted to the facility. Arbitration agreements are known to infringe on the rights of patients for a number of reasons. Firstly, arbitrators are chosen by the facilities and insurers, creating an implicit bias. Arbitrators are not bound by the laws of the state. The proceedings are private, depriving the public of valuable information regarding the practices and shortcomings of these facilities. They also tend more often than not to favor the facility, awarding less on average than the courts when they do decide a case in a plaintiff’s favor.
As The New York Times reported, the Trump administration is now seeking to roll back earlier protections, citing the need to reduce costs for businesses.
Of course, protecting the bottom line is one thing when we’re talking about cell phone contracts. It’s quite another when we’re discussing the care of elderly and vulnerable adults.
As our nursing home negligence attorneys in Orlando know well, many adults and family members are vulnerable when those contracts are signed. In a great number of cases, people aren’t even aware of what they are signing, as such agreements are often buried in a single page of a 40-to-50-page contract.
What the Obama administration tried to do last year was prohibit such agreements, theorizing that it was virtually impossible for new nursing home residents – or those making decisions for them – to offer consent that is fully informed or voluntary prior to an incident (such as abuse, neglect or negligence) giving rise to such action.
It’s been well-established that nursing homes continue to dole out poor or sub-standard care to elderly wards. There are many reasons for this, many having to do with under-staffing at for-profit facilities primarily concerned with bolstering their coffers. In one analysis of federal health inspection information, nearly 530 nursing homes that “graduated” from a status of “special focus” from oversight agencies are still in operation and of those, more than half have since harmed patients or placed them in serious jeopardy at some point in the last three years. There have been many cases documented by nursing home inspectors revealing instances of patient injury, including medication errors, dehydration, malnutrition, bedsores and sexual assault.
Yet, the current administration insists the arbitration agreement ban imposes costs on providers that are both excessive and unnecessary. In a statement, the administration called such agreements “advantageous,” allowing for resolution of claims without the expense of a lawsuit. That money, the administration stated, could be better used for patient care. However, there is no evidence that any “savings” would be used in that way, particularly considering most claims are paid out by facility insurers.
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.
Trump Moves to Impede Consumer Lawsuits Against Nursing Homes, Aug. 18, 2017, By Robert Pear, The New York Times
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