Most if not all nursing homes these days require new residents or representatives to sign a residential agreement upon admission. Sometimes, these agreements simply state that the resident has an obligation to pay their bill. But increasingly, these agreements include clauses called “arbitration agreements.”
These agreements prohibit residents from suing the nursing home in court, requiring instead that all disputes be settled before an arbitrator. The forum isn’t public, the arbitrator doesn’t have to abide by state and federal laws and because arbitrators get a substantial chunk of their income from resolution of these disputes, they are more likely to decide them in favor of the defendant nursing home.
When a resident or family member files a nursing home negligence lawsuit, the nursing home will file a motion to compel arbitration, and if the judge grants it, the case goes to an arbitrator. While courts have generally been favorable of arbitration, they have also increasingly found reason not to enforce the arbitration clause. Often, it has to do with the agreement being unconscionable. However, sometimes it’s a because the person who signed it did not have the legal authority on behalf of the resident to do so. In the recent case of Johnson v. Heritage Healthcare, the South Carolina Supreme Court decided that the nursing home waived its right to arbitration by participating in the court proceedings for months without filing a motion to compel.
The nursing home had argued the plaintiff was on notice that the defense intended to compel arbitration. But the court ruled the defense spent eight months – actively participating in discovery – when it could have saved the plaintiff the time and expense.
According to court records, the nursing home negligence lawsuit stemmed from the 2009 death of an 85-year-old woman who had been healthy when admitted but who became seriously ill with pressure sores within six months of admission. One of her legs had to be amputated as a result and she ultimately died of complications.
Shortly after the ulcers became known, plaintiff – daughter of the patient – filed a request for her mother’s medical records. However, the nursing home refused, citing privacy laws, as the patient was still alive.
Plaintiff then filed a request with the court, asking for access to the records and also asking for a restraining order to prevent the company from destroying, altering or changing the records. Circuit court granted the restraining order.
Soon after, the court appointed plaintiff as her mother’s guardian ad litem, in order to quell the privacy concerns. It also issued an order requiring the nursing home turn the records over. Still, it would not.
While an appeal was pending, patient died and daughter was appointed personal representative of decedent’s estate. It was only then the nursing home agreed to turn over the records.
Soon after, plaintiff filed her wrongful death lawsuit. Defense responded with a number of defenses – including arbitration. However, it did not actually move to compel arbitration at that time. Instead, it filed a host of discovery requests on plaintiff.
For eight months, the defense participated in discovery before finally filing a motion to compel arbitration.
Plaintiff moved to strike the arbitration defenses, arguing that right had been waived because defense didn’t move to compel arbitration throughout any of these proceedings.
Ultimately, circuit court determined defense had waived its right to arbitration because of the delay in the request and the fact it had prejudiced plaintiff by wasting significant time and money that was totally within defendants’ power to avoid.
If you have been injured in Florida, contact the Hollander Law Firm at 888-751-7777 for a free and confidential consultation. There is no fee unless we win.
Johnson v. Heritage Healthcare, May 25, 2016, South Carolina Supreme Court
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Daher v. Pacha NYC – Challenges for Foreign Personal Injury Claimants in Florida, June 1, 2016, Naples Nursing Home Negligence Lawyer Blog