An Added Nursing Home Hazard

The Fine Print in Nursing Home Contracts

Deciding on a nursing home for a relative can be a tremendously difficult decision for a family, and a little-publicized but growing legal tactic by many nursing home operators can make it even more hazardous to those put in their care. A recent Washington Post article turned the spotlight on this new hazard for nursing home patients and their families: restricting their ability to seek redress in the courts for cases of sub-standard care or even abusive treatment.

Nursing home operators increasingly now include in patients’ admissions paperwork a provision by which the patient, or the patient’s family or guardian, agrees to forego suing in any dispute, no matter how grievous the nursing home’s alleged negligence or misconduct may be. The admissions forms require any and all future disputes over the quality of care, injuries to the patient, or even the patient’s death from mistreatment, to be referred to private arbitration, rather than to court remedies. It’s possible persons signing themselves or a family member into a nursing home never even notice the provision, since admission papers can be voluminous and may be completed at a time of crisis and high stress.

Nursing home operators are moving towards mandatory arbitration for one simple reason: it gives them a stronger hand – many would say an unfair advantage –in case of any disputes. The mandatory arbitration provision typically allows the nursing home operator to choose the arbitrator. Another plus for the nursing home operators: held in private setting and often covered by confidentiality pacts, arbitrated disputes usually receive far less publicity than would a dispute heard in open court, with documents open to public access.

In addition, arbitration cases tend to award damages less frequently, and in lesser amounts, than do cases decided by a judge or jury. For example, studies have shown that, out of a total of roughly 1,400 closed claims against nursing homes during in a recent nine-year period, no monetary awards were made in 30% of arbitrated cases, compared with 19% of non-arbitrated ones. Similar studies have shown that claims against nursing home operators resulted in awards of $250,000 or more in almost 12% of claims that were not arbitrated, compared with 8.5% of arbitrated claims.

The fact that mandatory arbitration limits victims’ rights is even more unfortunate because instances of neglect, abuse and mistreatment of nursing home residents are far from rare. The Centers for Medicare and Medicaid recently compiled reports made by state inspectors on their visits to about 15,000 nursing homes across the nation and identified over 134,600 deficiencies. Additionally, more than half of the reported deficiencies were categorized as causing “more than minimal” harm. The most frequently identified deficiencies were staff members failing to provide adequate supervision for residents. Inadequate control of infections was another widespread deficiency. Another report from the Department of Health and Human Services in 2011 concluded that strong and potentially lethal antipsychotic drugs were used by nursing homes with dangerous frequency.

Whatever the value of arbitration in other contexts, it is clearly much too one-sided for nursing homes to use against their own residents given the frequency of the deficiencies in nursing home care. If you have any questions about the care that you or a loved one received at a nursing home, please feel free to contact an attorney here at Trombly & Singer for a free consultation.

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