Those affected by abuse and neglect in nursing homes may seek to hold these facilities accountable, and that often involves substantial settlements and jury verdicts. But in order to reduce the chances they’ll have to pay these damages – or at least reduce the amount they will pay – nursing homes have begun making arbitration clauses standard in admission forms. These agreements require patients or their representatives to sign away the legal right to sue. Instead, disputes are required to be settled through arbitration.
Arbitrators tend to decide cases more often in favor of the nursing homes, they aren’t required to follow established case law and when they do decide a case in favor of a plaintiff, the damages awarded are typically far lower than what we would see in civil court. Plus, the outcome in these cases is always confidential, so the nursing home never faces public scrutiny for its actions (or inaction).
The good news is there are a growing number of cases in which courts in South Carolina and beyond are finding much ground on which to deny nursing homes this avenue of unfair dispute resolution.
In the case of Johnson v. Heritage Health, the South Carolina Supreme Court ruled a nursing home had waived its right to arbitration by participating in discovery during an earlier court proceeding regarding the case – a legal strategy that cost the plaintiff unnecessary time and money that defendant had the ability to prevent.
According to court records, patient was admitted to defendant facility in 2007. Her adult daughter, who had health care power of attorney, signed an arbitration agreement on her mother’s behalf. (It’s worth noting that while this was not an issue in this particular cases, courts have often found that when a family member signs a patient’s legal rights away without holding the proper legal authority, that agreement is invalid.)
When patient was admitted, she was 85-years-old and in generally good health. However, within six months of being a patient at defendant facility, she developed a series of painful pressure ulcers that ultimately resulted in the amputation of one of her legs. She was later transferred to another facility, where she died.
After the pressure ulcers were discovered, plaintiff (patient’s daughter) sought to obtain her mother’s medical records. However, the nursing home refused, citing health care privacy laws. A circuit court twice ordered the facility to turn over the records, once after the plaintiff was appointed as her mother’s legal guardian ad litem and again after her mother died and she was appointed representative of her mother’s estate. The nursing home only turned the records over to plaintiff after the latter.
After obtaining and reviewing those records, plaintiff filed a notice of intent to sue the nursing home for the personal injury and wrongful death of her mother. Nursing home responded by raising several defenses – including arbitration – but it didn’t specifically move to compel arbitration at that time. In fact, it didn’t file a motion to compel arbitration until eight months into the proceedings, participating in the discovery process up until that point.
When the nursing home finally did move to compel arbitration, plaintiff argued that right had been waived because the defendant actively participated in the court proceedings up to that point.
The circuit court ruled in favor of the plaintiff, but the South Carolina Court of Appeals reversed. Upon review, the South Carolina Supreme Court reversed the appellate court decision.
The court ruled that the nursing home’s participation in discovery proceedings for those eight months without seeking arbitration prejudiced the plaintiff by causing her to incur unnecessary costs and waste time. Therefore, the civil trial will continue.
Contact the Carolina injury lawyers at the Lee Law Offices by calling 800-887-1965.
Johnson v. Heritage Health, May 25, 2016, South Carolina Supreme Court
More Blog Entries:
Pittman v. Rivera – Bar Not Liable for Assault on Property, May 28, 2016, South Carolina Nursing Home Abuse Lawyer