Elderly Patients and Families Suffer Injustice Due to Arbitration Clauses for Nursing Home Abuse Cases
Nursing home abuse is becoming a more visible issue as the baby boomers age and families find that they do not have the skills to care for their aging loved ones, forcing them to admit aging family members into nursing homes. No one wants to put their lived one in a nursing home, but as more of the population lives longer, they begin to suffer dementia and other diseases that make home care difficult. In-home caregivers can be a good stop-gap measure, but eventually, many elderly patients need 24/7 care – an expensive prospect inside a home.
Unfortunately, many nursing homes do not hire a sufficient number of staff members, or hire under-trained staff who cut corners, jeopardizing care and potentially increasing the risk of unreported nursing home abuse. Federal regulations state clearly that elder abuse is illegal and should be prosecuted, and many state regulations set up specific rules governing how reports of nursing home abuse will be investigated. Sadly, as budget cuts continue to affect government positions, even ombudsmen and nursing home inspectors are too overworked to investigate nursing home abuse reports in a timely fashion.
For many families whose elderly loved ones have suffered abuse or died due to negligence, the only possible recourse is a lawsuit. Many nursing homes take advantage of that last resort, placing an arbitration clause in their fine print stating that elderly patients and their families must arbitrate any disagreement, rather than debate the matter through the court system.
The American Health Care Association has been pushing for reform regarding nursing home arbitration clauses, suggesting that while a voluntary arbitration clause is acceptable, mandatory arbitration should be illegal. The Federal Centers for Medicare and Medicaid Services (CMS) say they will consider making mandatory arbitration clauses for nursing home residents and their families illegal.
“While this can be a valid agreement when entered into by individuals with equal bargaining power, we are concerned that the facilities’ superior bargaining power could result in a resident feeling coerced into signing the agreement,” according to the proposed rule.
“Every one of us could tell you horror stories about these arbitration agreements because they’re used for the wrong reasons all the time,” said Kimberly Valentine, an attorney who advocates for nursing home patients and their families against abusive practices at the facilities.
“Arbitration provisions lead to protracted litigation, not faster results or less expensive resolution of cases. The nursing home industry uses them to stall cases, take appeals and delay justice. An elderly surviving spouse may not live long enough to see justice when nursing home corporations take this approach,” wrote John Suthers in an article for Savannah Now. Even in South Carolina, Southern hospitality and manners do not prevent elder and nursing home abuse, and nursing home chains still use arbitration clauses to confuse and disenfranchise nursing home residents and their families.
These statements are not just one-sided emotional claims, but are backed up by facts. The AON Report, requested by the LTC insurance industry all the way back in 2013, concluded that arbitration agreements allowed for 16% lower settlements than for claims resolved without arbitration agreements in place. Not surprisingly, 20% of nursing home abuse and negligence claims are routinely rejected with no payment to the victim(s).
Arbitration clauses have been used by consumer products companies to prevent lawsuits, and now the nursing home industry has been exposed as perpetrating the same victimization of their abuse victims and families. We will keep you updated as change progresses.
