More and more Americans are finding that nursing home facilities can exploit residents and their families through forced arbitration clauses, which essentially sign away families’ rights to sue the facility for negligent caregiving.
After Beulah Addison suffered a stroke, she and her family made the agonizing decision for Addison to move into a nursing home. But the nursing home they chose employed a con artist who would end up scamming Addison out of her house.
Yet when Addison tried to sue the nursing home to hold it accountable for its role in this con game, her case was tossed out of court. The reason: shortly after Addison checked in, the nursing home thrust a document into her hands and told her to sign it. That document was a binding arbitration agreement, and it stated that if the nursing home broke the law, no matter how drastically, Addison could only seek relief from a biased, privatized arbitration forum.
Stories like this are all too common. Abusive and neglectful long-term care facilities are increasingly avoiding accountability for their actions – and becoming more brazen in their use of forced arbitration. In one of the most egregious cases, an assisted-living center tried to force an elderly Alzheimer’s patient into arbitration after she was found covered in fire ants.
Long-term care recipients and their loved ones must be wary of arbitration clauses snuck into nursing home and assisted living center admissions papers. In some cases, new residents are under no obligation to sign such agreements, and will be admitted into a long-term care facility even if they refuse – although nursing home staffers often withhold this fact. However, in many cases, nursing homes will refuse to admit new residents unless they agree to sign away their rights and accept forced arbitration terms. These residents face the unenviable choice of either signing away their rights or searching for another long-term care facility that could be many miles from their families.
In 2008, Richard Embry was involved in a serious automobile accident where he suffered a cervical spine injury that went undetected by emergency room physicians. As a result of the undiagnosed spinal injury, Richard’s physicians ordered the removal of his cervical collar which caused him to become paralyzed. Richard was transferred to a nursing home facility where, despite being awake and competent, nursing home staff asked his daughter, Kristen Blincoe, to sign her father’s admission documents which included a forced arbitration clause.
When Kristen asked if she needed to read the documents before signing them the nursing home employee flipped to the signatory page and assured Kristen that the documents were required for her father’s stay and that she didn’t need to read them. During his four month stay at the facility, nursing home staff failed to properly care for Richard’s bed sores and he developed endocarditis despite orders that he was to be moved every few hours because of his paralysis. Richard never recovered and passed away shortly thereafter. When Mr. Embry’s estate filed suit against the nursing home their lawsuit was dismissed and forced into arbitration because of the clause hidden in Richard’s admission documents. Adding insult to injury, the arbitration forum mandated by the arbitration clause in Richard’s admission documents was no longer able to arbitrate health care claims because it had enforcement action taken against it by the State, rendering the estate’s claim against the nursing home worthless.
In 2002, Mary Hight entered a nursing home in Kosciusko, Mississippi. Her daughter, Janice, was rushed to complete the admission forms with no explanation of the mandatory arbitration clause that was included. In September of 2003, Janice and her siblings noticed Mary’s deteriorating health. One day, Janice called her mother who said she was not feeling well so Janice hurried over. Mary’s skin was drawn and taught against her bones, her eyes were bulging and her mouth was sunken in. Mary had not had any fluids in 24 hours, she was not urinating and she suffered from diarrhea. When Janice arrived she could barely recognize her mother because of her mother’s horrible physical condition. Janice told the nurses to call the ambulance, but they refused. The nurses said that they could not call an ambulance unless it was an emergency because Medicare would not cover the expense. Janice called everyone she knew but could not reach anyone. Janice pleaded for help, and the charge nurse told Janice that to wheel Mary to the hospital in a wheelchair on her own. Janice asked the charge nurse if an aide could go with her to help. The charge nurse asked an aide to accompany Janice. However, the aide said that she was busy so Janice wheeled her mother from the nursing home up a hill to the hospital across the street. Before leaving, the nursing home asked Janice to make sure she brought the wheelchair back. Mary died four hours later while in the emergency room. Janice and her family did not want anyone else to suffer from negligent treatment as her mother had suffered so they sued the nursing home. They quickly discovered that they had signed away their right to a trial by jury and were forced to settle the dispute in mandatory binding arbitration.
Charles Miller Jr. filed suit in January 2005 in Worchester Superior Court alleging that his 91-year-old father, Charles Miller Sr., received negligent care while a resident of the Birchwood Care Center, a nursing home in Fitchburg. His father died as a direct result of the grossly inadequate care received from his physician, Eric Cotter, and the staff at the nursing home. On the date of his admission in October 2003, Charles Miller Jr. and his wife met with a representative from the facility and signed a number of documents including an arbitration clause. Charles Miller Sr. was admitted, but he was not evaluated by a physician until three weeks after his admission. During that time he lost 19 pounds, suffered from dehydration and worsening pneumonia, all of which led to his death. Charles Miller Jr. brought suit as representative of his father’s estate, but the nursing home argued that the valid arbitration clause compelled dismissal. The courts decided that the plaintiff could go to court against the negligent doctor and nurse but had to go to arbitration against the nursing home. This result not only harmed and inconvenienced the plaintiff but also the defendants who may have benefited from going to court jointly with the nursing home.
After being hospitalized, sixty-five-year-old veteran Charles McAlister was taken to a nursing home owned by Beverley Enterprises. Charles had no legs, he was illiterate, he could not hear or see well and he suffered from the early stages of dementia. While being admitted, he was given a binding mandatory arbitration contract. Instead of reading the clause to Charles, one of the employees paraphrased it in a misleading way. Since Charles is illiterate, the only way he could sign the contract was to make his mark. The mark found on the contract was later determined not to be Charles’. Charles developed serious, debilitating bed sores on his right and left hips. One of the sores had a foul odor and became severely infected. The negligent care of the nursing home led to his death on May 8, 2003. His family attempted to sue the nursing home for the negligent care he received, but they were forced into arbitration and initially lost. They later went back to arbitration and recovered from the nursing home. However, these unsafe, unfair and deceptive practices are likely to continue because arbitration is a secret process and the arbitrator did not have the authority to make the nursing home change their policies.
In January 2001, Sarah Hogan named her daughter, Barbara, as her agent, granting her power of attorney. In May 2004, when Sarah was suffering from Stage II Alzheimer’s disease, Barbara admitted her to Country Villa Plaza Healthcare Center, a skilled nursing care facility. At the time of admission, Barbara signed two arbitration agreements. Both were optional and each contained a 30-day rescission right. Unknown to Barbara, County Villa Services had implemented a plan to under-staff their nursing homes in order to increase profits. While in the facility, Sarah received substandard infection protection and she was not hydrated properly. She suffered severe dehydration and infections of the blood and urine, which led to her death on July 10, 2004. In July 2005, Barbara and her three brothers filed a complaint for wrongful death, elder abuse and violation of patient rights, but Country Villa forced them into arbitration. This is currently under appeal.
Dortha Bagley, suffering from Alzheimer’s disease, was forced to move after her nursing home shut down its Alzheimer’s unit. During her admission to Castleton Care Center facility, her daughter, Cheryl Sanford, had three grandchildren with her, adding to the high level of stress of checking in her mother. She quickly signed the admission forms, unaware that the contract contained an arbitration agreement. The Center failed to provide adequate care to Dortha. Dortha fell twice, due to lack of assistance from the staff. She was taken to the local hospital with a fractured hip and a urinary tract infection. Dortha died 21 days after her admittance into the facility following her hip surgery. Cheryl tried to hold the negligent Center accountable through the courts. However, the court upheld the arbitration agreement, and the case was settled soon after. After suffering through the pain of losing her mother, Cheryl had to go to court just to fight to have her case heard by a jury of her peers. Arbitration added an additional layer of lawsuits by adding a contract case that must be resolved before any other proceedings can continue.