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Arbitration Agreements: Nursing Homes Abusing Senior’s Rights
There are lawsuits currently in court that are protecting seniors, but not from the normal abuse and neglect at the hands of healthcare facilities and providers like those you’ve read here before. These lawsuits are protecting seniors from signing arbitration agreements that protect the nursing home incase of abuse and neglect.
Often times the nursing home will hide these important documents amongst an overwhelming stack of legal documents that can confuse an elderly patient that may already have a diminished ability to comprehend these documents.
Marlene Owen is one of the women who successfully challenged an arbitration Agreement signed by her delusional elderly stepfather in 2003. She said, “It gives the nursing home carte blanche to abuse these elderly people because they won’t have to answer to it”
Owens’ stepfather, John J. Donahue, died at age 93. She alleges that his death was directly related to the injuries he suffered at a Brockton, Mass nursing home in 2005. In 2007, Owens filed a lawsuit claiming abuse and neglect. That’s when she found out about the arbitration agreement.
Now that the arbitration agreement has been nullified by a judge, she is now suing her elderly step father’s former nursing home over bad care and neglect.
Arbitration Agreements: More Profit and Worse Care
Nursing homes are becoming less and less accountable for their care specifically because of their arbitration agreements. They don’t have to pay out as much for settlements so even if their lawsuits go up by 25%, they still are increasing their profit. So that allows them to pay for lower skilled or less trained staff, because the consequences are worth it.
The Aon Corp. conducted a study in 2009 for the American Health Care Association, which represents 11,000 senior living and rehabilitation centers. The average nursing home lawsuit claim amount in the United States from $261,000 in 1998 to an estimated $116,000 in 2008.
This is during a time when tort reform and arbitration increased. Though victims of abuse, their families, and attorneys can fight arbitration it is a long expensive road that makes settlements look easier and less emotionally draining.
“Settlements are less costly,” with arbitration, said Chris Coleianne, an actuary with Aon.
Aon also found:
- Lawsuit payouts on average in arbitrated cases was $91,000, compared to $138,000 in nonarbitrated cases; 35% less.
- Nursing homes’ legal costs were around $33,000, compared to $56,000 in nonarbitrated cases; 41% less.
These numbers are significant over the long run.
“Nursing homes began offering arbitration agreements about nine years ago to rein in high jury awards and legal fees, and so far it’s working,” said Susan Feeney, vice president of public affairs for the American Health Care Association. “Payouts may be lower, but families pay a lot less in legal fees with arbitration,” she said.
Legislators Join the Fight
Governor Chris Gregoire has called on the Department of Social and Human Services to begin a significant crackdown on Nursing Homes in Washington State. She did this on the heals of the shocking article about nursing home abuse in Washington state by the Seattle Times.
That crack down has yielded some results, but has yet to address the serious problems found throughout the state that the Times alleges. The rampant abuse in such a blatantly profitable industry is something that both Gregoire and the Times recognizes needs to be curbed before it gets out of hand.
Even politicians on the federal level are mobilizing to protect seniors. U.S. Rep. Barney Frank (D-Mass) and U.S. Rep. William Delahunt (D-Mass) are among 28 sponsors of legislation banning arbitration agreements in nursing homes. The legislation has already been filed by California Rep. Linda Sanchez. It is pending in front of a House subcommitee.
Nursing Homes Fight Back
As one might guess the nursing home industry has mobilized against the bill so to retain their right to abuse seniors without accountability.
W. Scott Plumb, senior vice president at the Massachusetts Senior Care Association, representing 400 nursing homes throughout that state alone, defended the use of the agreements and said the nursing home industry has been singled out.
“They are quicker, less costly and they are very attractive alternatives to expensive, time-consuming litigation,” Plumb said. He makes arbitration agreements sound as enticing as a luxury car.
Yet, even the people who give the care in the nursing homes themselves agree that seniors need to retain legal protection. Arlene Germain, president of Massachusetts Advocates for Nursing Home Reform, said the agreements capitalize on vulnerable seniors.
“They should not lose the ability to hold nursing homes accountable in the event of abuse or neglect by signing away their constitutional right to have their cases heard by a judge and jury,” she said.
Protect Yourself and Loved Ones
There is this idea that if you allow nursing homes profit that they will somehow raise the level of care or give back to their residents somehow. Yet, trends have shown that the more profit a nursing home care corporation makes, the more facilities they open. Though the level of care in these facilities may be higher, the residents pay for it through higher leases and fees. Also, that doesn’t guarantee that the facility will retain the level of care or be maintained as the corporation moves on to their next more profitable venture.
As a normal citizen who cares for the health and welfare of your elder loved one it is important that you monitor their care for signs of nursing home abuse or nursing home neglect. Often they cannot communicate concerns on their own so it is also important that you examine them periodically for signs of abuse. If you see these signs you should find experienced legal council to find out your legal options. Call Phillips Webster for a consultation.
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