Jonathan Rosenfeld's Nursing Homes Abuse Blog : Jonathan Rosenfeld's Nursing Homes Abuse Blog | Lawyer & Attorney : Strellis & Field Law Firm | Bed Sores, Senior Neglect, Elder Abuse, Sexual Abuse: Chicago, Illinois

One of the trends in nursing home litigation has been the inclusion of mandatory arbitration agreements in admission paperwork.  By signing an arbitration agreement (usually unknowingly), nursing home patients may surrender their opportunity to recover money for an injury via a traditional jury trial.  Alternatively, injured parties must present their grievances before an individual or group of arbitrators.    

The arbitration agreements set forth the terms of the arbitration and how many arbitrators will hear the matter.  Generally, in the case of a single arbitrator, the individual is selected by the nursing home.  In the case of an arbitration panel (usually three people) both the nursing home and the injured party may choose an arbitrator, with a third arbitrator selected by the appointed arbitrators.

Because the ability to award money for an injury or wrongful death is taken out of the hands of jurors and into the power of individuals who may be influenced by industry power-- mandatory arbitrations are usually vigorously fought by injured parties. 

Until recently, it was universally believed that an injured person stood little chance of receiving a fair recovery in an arbitration setting because many of the arbitrators had allegiance to large nursing home operators and other appointed arbitrators may be unfamiliar with issues that frequently arise in nursing home injury matters.

That was then, this is now.

Recently, a three-person arbitration panel recently awarded over $2.7 million in damages to the family of Voncil Sherrod who died in March, 2005 from complications related to gangrene and advanced pressure sores that developed during her admission to High Point Health Care and Rehabilitation Center in Tennessee.

In addition to High Point, damages were also sought from Mariner Health Care (the parent company), Mariner Health Care Management (the management company) and National Heritage Realty Company (the licensee).  Ms. Sherrod's estate claimed that all entities were guilty of: negligence, violation of the Tennessee Adult Protection Act (TAPA) and medical malpractice.

In making this substantial award, the arbitration panel obviously sent a message to the various nursing entities that they can no longer assume that taking a nursing home negligence matter away from a jury will protect them from liability.  Also, notable was the large award for punitive damages against the facilities especially in light of the more modest awards for other claims.

The arbitration award is comprised of the following:

• $250,000 for TAPA violations
• $400,000 in attorneys fees for intentional, malicious or fraudulent misconduct resulting in TAPA violations
• $626,396.32 for medical malpractice 
• $1,500,000 punitive damages

Related Nursing Homes Abuse Blog Entries:

A Legal Victory For Nursing Home Residents. State Laws Can Supersede Federal Arbitration Act

AARP Joins Fight To Preserve Right To Jury Trial

Are Trials Really That Important? 

A Call To Abolish Arbitration Clauses 

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Some court decisions leave lots of room for future generations of law school classes to debate the subtleties of the Judge's wording.  Yet, other times the the court's action--without rendering an opinion-- can have equally powerful results. What could I possibly be inarticulately blabbering about?  

June 1st marked the deadline by which the U.S. Supreme Court could grant review of an Illinois Appellate Court decision nullifying nursing home arbitration arbitration agreements. Instead, the court decided to leave the Appellate decision untouched-- in essence giving its stamp of approval to a holding striking an appellate court decision that invalidated mandatory arbitration agreements in nursing home negligence cases.

In Sue Carter v. SSC Odin Operating Company, LLC, (885 N.E. 2d 1204, 319 Ill.Dec. 524 (2008), the daughter of a nursing home resident brought a wrongful death and survival cause of action under the Illinois Nursing Home Care Act against the nursing home where her mother was a resident.  Despite the fact that Ms. Carter executed a 'Health Care Arbitration Agreement' on her mothers behalf when she admitted her mother to the facility, the Appellate Court ruled that state law preserved her right to a jury trial. 

The nursing home operator appealed the Appellate Court decision, claiming the mandatory arbitration clause, pursuant to the Federal Arbitration Act, should overrule any state law as the federal legislation should take precedent.

Consequently, nursing home arbitration agreements in Illinois will likely be a thing of the past. Perhaps, this action by the court will dissuade other states from enforcing similar agreements.

Read more about this important case preserving nursing home resident rights here.

Nursing Homes Abuse Blog Posts On Arbitration Agreements

The Invalidity Of Nursing Home Arbitration Clauses

Are Trials Really That Important?

Michigan Court Strikes Nursing Home 'Arbitration Clause' And Allows Wrongful Death Case To Proceed In Court

AARP Joins Fight To Preserve Right To Jury Trial

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A Michigan Court has stricken an 'arbitration clause' from a pending wrongful death lawsuit against a Michigan nursing home.  In the case of High v. Capital Senior Living Properties, a nursing home resident's son filed a wrongful death lawsuit against the facility for failing to properly supervise his mother. Among the claims made in the lawsuit, the Plaintiff, Sidney High, claims the facility was negligent in allowing his mother (who had Alzheimer's) to wander from the facility and freeze to death. 

After filing the wrongful death lawsuit, Capital Senior Living filed a motion to dismiss and attempted to force the claims made in the lawsuit to proceed under arbitration.  The facility claimed they were entitled to have any claims made against them in a private, arbitration setting per the terms of their admission documents. 

In siding with son of the deceased nursing home resident, the Federal Court reasoned that there were multiple factors that weighed in favor of striking the arbitration clause in the nursing home admission contract.  Among the factors the court looked at in determining the arbitration clauses invalidity was that the clause was never signed by the resident herself and the woman did not have the mental capacity at the time of her admission to reasonably comprehend the significance of the contract.

Arbitration Clauses 

In an effort to avoid litigation and keep information regarding the quality of care provided in nursing homes private, many nursing homes have inserted arbitration agreements into nursing home admission documents.  Unlike most personal injury lawsuits, where a jury determines the amount of compensation due to an injured person, an binding arbitration (as most arbitration clauses specify) allow one person to determine the damages to be awarded to an individual or family.  Moreover, many nursing home arbitration clauses allow the nursing facility to appoint the arbitrator themselves-- hardly an independent trier of fact.

Many states have stricken arbitration clauses from nursing home injury and death cases and have allowed the matters to be heard by a judge or jury.  Last session, Congress introduced the Fairness in Nursing Home Arbitration Act, which would effectively invalidate all arbitration clauses.  We will keep blog readers updated as to the status of this important development in nursing home legislation as the new Congress convenes.

Read the full case of High v. Capital Senior Living Properties here.

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AARP, filed a 'friend of the court' brief in a wrongful death lawsuit pending in New Mexico.  The brief is intended to provide supplement information to the court regarding an injured nursing home resident's ability to pursue a nursing home negligence lawsuit in court as opposed to binding arbitration as stipulated to in a nursing home admission agreement. 

Roswell Senior Living, the owner of a nursing home in New Mexico filed a motion to dismiss a nursing home negligence lawsuit filed by the family of a deceased nursing home resident.  Roswell claims any disputes involving nursing home injury or death, should be resolving via arbitration as stipulated by admission paperwork. AARP has taken a position, supportive of the family bringing the lawsuit that the arbitration clause should be held invalid because of the unequal bargaining position and an injured person's right to jury trial.

Many unsuspecting nursing home residents sign arbitration agreements when they are admitted to the facility.  Little do they know that should they become injured due to the negligence of the facility they could be forced to forgo their right to a jury trial and damages.  Arbitration's have generally been used to resolve business disputes, behind closed doors in a private forum.  Because no court actually hears the matter, many discovery, evidentary and procedural rights are curtailed.  The curtailment of rights usually adversely impacts the injured party.

Fortunately, many State Courts have recently held these binding arbitration agreements to be invalid, and allow injury nursing home residents to pursue claims for damages in court.  We will keep blog readers posted the outcome of this case.

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The Senate Finance Committee passed the Patient Safety and Abuse Prevention Act, S. 2838 which notably abolishes mandatory arbitration clauses and establishes a nationwide system of background checks to stop convicted felons from working in nursing homes and other long-term care facilities.

The bill is now going before the full Senate.  The legislation puts in place a system of background checks and encourages federal and state coordination. It will utilize the FBI’s national database and state police records in order to effectively screen potential care-givers for criminal history. The criminal background checks will prevent common incidents involving: sex abuse, physical abuse and neglect. 

Nursing home arbitration clauses have been a sneaky secret inserted into admission documents for unsuspecting nursing home residents and their families.  The arbitration clauses attempt to force cases involving nursing home injury or death to be resolved before an arbitrator as opposed to being able to have their case heard in court.  In many circumstances the arbitrators are actually paid by the nursing homes--hardly impartial.

The Watchdog Blog and specifically blog authors, David Arkush and Christine Hines did a nice job describing how the nursing home industry did its best to misrepresent the importance of a right to jury trial for nursing home cases.  Arkush and Hines sum it up best when describing the intentions of nursing home owners attempts to continue with mandatory arbitration, 'We're corporate lobbyists fighting for the right to neglect or abuse elderly nursing home residents with impunity.  Our corporate clients want to make millions in profits without worrying about being held accountable if they hurt people.'

Call your senator and tell him or her to vote to support the Fairness In Nursing Home Arbitration Act.

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