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.
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.