In an effort to mitigate their potential risk, many have begun thrusting arbitration agreements at new residents at the time they are admitted. Our Anderson nursing home abuse lawyers want to make you aware that by signing these papers, you or your loved one is effectively giving up your right to sue the nursing home if there is a dispute about care or even evidence of wrongdoing.
Instead, the case would go before an arbitrator. Not only do plaintiffs generally burden the cost of the arbitrator, but the outcomes tend to be more favorable toward the nursing home. Even in cases where the plaintiff emerges victorious, the damages awarded are often far more modest than those awarded by a jury.
And yet, nursing homes have continued success in getting people to sign these documents. It’s not that they are even requiring patients or their representatives to sign as a condition of admission. In fact, in most cases, it is expressly stated that agreeing to the arbitration clause is not a condition of admission. But the problem is, people are generally so overwhelmed and emotionally-wrought over the entire admissions process they sign off on whatever is put in front of them.
This was apparently the case in Licata v. GGNSC Malden Dexter LLC, reviewed recently by the Massachusetts Supreme Court. According to court records, a woman was admitted to a nursing home facility after she had experienced increasing bouts of confusion while under the care of her son. The day of her admission, she signed a health care proxy designating her son as her health care agent, allowing him to make critical health care decisions for her in the event she was unable to do so herself.
Then, while the woman was in another room, her son was asked to complete a stack of admissions paperwork. Among those documents was an arbitration agreement. The document called for the signature of either the patient or the “resident’s legal representative.” Her son signed.
The following year, the woman suffered an injury at the facility, and she died as a result of those injuries. Her son subsequently filed a lawsuit against the facility. The nursing home facility, in turn, moved for a summary judgment on the grounds that, by contract, any dispute had to be handled by arbitration agreement.
However, the motion judge concluded that although the agreement was not unconscionable, the son had the authority to sign it on behalf of his mother. The state supreme court ultimately agreed.
These kinds of cases have been cropping up throughout the country.
A similar case was decided by the South Carolina Supreme Court in 2009. In Grant V. Magnolia Manor-Greenwood, the husband of a new nursing home patient had signed an arbitration agreement on her behalf.
A year after her admission, the woman suffered a serious fall and sustained a major wound above her left eye. Five days later, she died as a result of her injury. Her husband filed a wrongful death lawsuit against the nursing home.
The nursing home sought to force the case to go to arbitration. However, the American Health Lawyers’ Association had recently amended its rules to indicate it would only arbitrate health care liability claims hen the arbitration agreements had been entered after the alleged injury.
The circuit judge in this case determined that because an arbitrator with the AHLA wouldn’t conduct the arbitration (as spelled out in the original agreement), the circuit judge determined the agreement void. This ruling was upheld by the state supreme court.
The bottom line is that while it’s inadvisable to sign a nursing home arbitration agreement in the first place, it is not an insurmountable challenge to a case.
Contact our South Carolina personal injury lawyers at Lee Law Offices today by calling 800-887-1965.
Licata v. GGNSC Malden Dexter LLC, Jan. 13, 2014, Massachusetts Supreme Court
Grant V. Magnolia Manor-Greenwood, Inc, June 15, 2009, South Carolina Supreme Court
More Blog Entries:
Elderly Care Regulation Lacking for Assisted-Living Industry, Dec. 13, 2013, Anderson Nursing Home Abuse Lawyer Blog