A group of nursing home workers in Florida were recently charged with the
brutal beating of a resident suffering from dementia. The abuse was captured
on tape as the workers repeatedly struck the victim on the head, arms
and legs. Yet, despite this incontrovertible evidence of battery, the
nursing home which employed the workers will likely be free from ever
being held accountable for any negligence or lack of oversight. How can
this be? If the nursing home is like the majority of long-term care facilities
in the United States, it will have included a clause in its contract with
prospective residents that funnels all disputes through mandatory arbitration.
That is, rather than being able to access the civil justice system, residents
and their representatives are forced to undergo a process that is expensive,
biased, and ultimately rigged against victims of nursing home abuse.
Nursing Home Study from North Carolina Uncovers Systematic Problems
In a comprehensive study of more than 300 nursing homes in North Carolina,
Lisa Tripp, Professor of Law at Atlanta's John Marshall Law School,
found that all of the major nursing home chains operating in the state
use pre-dispute binding arbitration agreements. In addition to the constraints
placed on residents' legal rights, Tripp found that there is confusion
regarding the presence of arbitration agreements. Specifically, the discrepancy
between what is stated in nursing home contracts and the statements of
admissions coordinators indicate that facilities' practices do not
mirror the actual language in the agreements. Regardless of whether the
inconsistency is a matter of policy or simply a matter of confusion on
the part of the admissions coordinator, the presence of language making
the signing of an agreement to arbitrate voluntary does not provide a
legal guarantee that facilities treat the arbitration agreement as voluntary.
Moreover, when contacting long-term care facilities, Tripp encountered
one of two scenarios. When the arbitration agreement was not mandatory,
most of the admissions coordinators explained that the facility offers
residents the opportunity to sign it but that the resident does not have
to sign it. However, some admissions coordinators did not accurately characterize
the significance of agreeing to arbitrate and several tended to report
the arbitration agreement in more benign terms than was true.
The other common scenario was that admissions coordinators were confused
about what an arbitration agreement was and didn't know if the facility
used them or not. About half the time that the admissions coordinator
was confused about what an arbitration agreement was, the facility was
using pre-dispute binding arbitration agreements in their admissions contracts.
Among the admissions contracts with mandatory arbitration provisions,
about half of the agreements contained provisions requiring nursing home
residents to pay a percentage of arbitration costs, including arbitrators' fees.
Anyone who has admitted a parent, grandparent, or spouse to a nursing home
knows that the process is fraught with emotion and the paperwork required
can be daunting. During this difficult time, families should not suffer
the far-reaching legal consequences of an admissions process where those
seeking medical care lose a fair bargaining position in the event of future
disputes with their health care providers. Call The Pittman Firm today
to understand this complex process and to have advocates on your side
when entering into nursing home agreements for your loved ones.