Upon admission to a South Florida nursing home, it is not uncommon for a new resident or loved ones to be handed a stack of papers to sign. Increasingly, those papers contain a document that requires the patient to forfeit their right to have any disputes handled in court. Instead, they agree to have those disputes heard by a professional arbitrator.
These documents are often tucked away in the package of admission papers, and people often feel deceived once an issue arises and they realize the rights they have signed away.
For nursing homes, the benefit is clear: The results of arbitration are confidential. The awards are usually substantially less. And plaintiff success rate in arbitration as compared to the courtroom is significantly lower.
The good news is that a growing number of cases have involved arbitration agreements deemed unenforceable for one reason or another. Usually, this hinges on whether the relative who signed the paperwork was legally in a position to do so for his or her loved one. If the patient signed, then the question becomes whether he or she had the capacity to do so. The court will also look at the overall fairness of the agreement. If it is dramatically skewed in favor of the nursing home, it may be deemed unconscionable.
In the case of Hattiesburg Health & Rehab Center v. Brown, the wife of a new resident signed his admission papers – including an arbitration agreement. That was in February 2012. However, less than a few months later, he was found to be suffering from pressure ulcers. Specifically, he died of respiratory failure due to Stage IV decubitus ulcers.
These ulcers are the direct result of poor care and supervision because they result when a bedridden or largely immobile patient is not turned and cleaned on a regular basis. They are extremely painful and dangerous, and at an advanced, Stage IV level, as this one was, the bone and muscle would have been exposed.
Patient died shortly after being admitted to the hospital.
His widow filed a wrongful death lawsuit, alleging negligence, medical malpractice, negligent supervision, vicarious liability and deviations from standard of care.
The nursing home responded by dredging up that arbitration agreement, and requesting the court enforce the agreement and dismiss the case. Trial judge refused to do so on two grounds:
- Plaintiff lacked the legal authority to sign the document on behalf of her husband, as he had not been declared incapacitated;
- The arbitration agreement was unconscionable.
Defendant appealed, and the case was passed on to the Mississippi Supreme Court. Trial court determined decedent was not bound by the arbitration. Because that finding was dispositive, the court did not reach the issue of unconscionability.
What that means is the case will now go to trial court for further proceedings.
Although there can be benefits to arbitration agreements, our nursing home injury attorneys believe it’s best not to sign them in the first place.
If you realize you signed an arbitration agreement within the last 30 days an you want to opt out, most have a 30-day opt-out provision.
Beyond that, you want to have an experienced personal injury lawyer to help you formulate the best legal strategy.
If you have been injured in a nursing home in Boca Raton, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Hattiesburg Health & Rehab Center v. Brown, Aug. 13, 2015, Mississippi Supreme Court
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Ray v. Draeger – Insurance Industry Bias of Expert Witness Relevant, July 30, 2015, Boca Raton Nursing Home Abuse Lawyer Blog