With baby boomers starting to move into nursing homes, there is an increasing demand for spots, especially in high-quality placements. As demand increases, nursing homes have leverage and can be more selective about who they admit. Along with that selectivity comes contract terms that are unfavorable to residents, including conditions that bar lawsuits against the nursing homes. Instead of being able to go to court like any other injured citizen, nursing homes sometimes insert contract provisions requiring binding arbitration instead. While arbitration is ostensibly a neutral setting for grievances to be heard, it lacks many of the quintessential qualities of a court, such as a jury, strict rules of evidence, and an ability to appeal decisions. Arbitrators rarely grant the significant settlements that come out of jury trials, making them the favored venue of industries such as nursing homes.
I want to discuss the effect that a recent U.S. Supreme Court case will have on nursing home abuse cases, and how it may affect the contracts that families sign when they agree to house their elderly loved one at a nursing home. I attached the entire case below for you to read but will provide an overview and discussion of the case’s ramifications below.
If you fear that an elderly loved one is being abused or taken advantage of, you must contact an attorney experienced in representing families in elder abuse situations immediately. Your loved one’s health, finances, and well-being are at stake. Barrett Law has the experience to help you during this difficult time. Contact us now at (800) 707-9577.
Kindred Nursing Centers v. Clark
The U.S. Supreme Court’s decision in Kindred Nursing Center v. Clark changed the playing field for those entering contracts upon moving into a nursing home. The facts are relatively straightforward. The families of two residents of Kindred Nursing Center moved their relatives into the Kentucky facility. Upon moving in, the families signed arbitration agreements that mandated that they resolve disputes in front of an arbitrator instead of taking any claim to court. The elderly residents did not sign arbitration agreements, however. Soon after, the elderly residents both died, and the families felt that their deaths were due to Kindred’s neglect or abuse.
Usually, if a family believed that their relative’s death was the result of neglect or abuse, they would file a case in state court alleging a tort such as negligence or wrongful death. But because these families had signed an arbitration agreement, Kindred argued that they should be barred from filing a case in Kentucky state court and should instead have the case heard by an arbitrator. The families filed wrongful death in state court, arguing that because the elderly residents did not sign an arbitration agreement, the parties were not bound to arbitration.
The case eventually made its way to the Kentucky Supreme Court, which held that a family member could not bind an individual with an arbitration agreement unless the person has expressly authorized entering the contract. The Kentucky Supreme Court held that a person must expressly waive his right to a jury trial under the Constitution.
The U.S. Supreme Court disagreed, determined that federal arbitration law trumped state law and that states cannot create special rules that apply only to arbitration agreements. This is a significant change, as states had enacted laws that protected their citizens’ rights to have a jury trial. I expect that over time, nursing homes will make it a practice to have families sign away residents’ rights to a trial in favor of more industry-friendly arbitrators.
What Should You Do If You Believe Your Loved One is Being Abused?
If you believe a loved one has been neglected or abused in a nursing home setting, contact experienced personal injury counsel immediately. Collecting evidence of the abuse, dealing with opposing counsel, and attaining expert opinions are essential tasks that a personal injury attorney can handle for you while you concentrate on making sure your parent or relative is safe and healthy.
Call Barrett Law now, an experienced Mississippi personal injury law firm, to represent you if your loved one has experienced abuse. Contact us now at (800) 707-9577.
