Suing A Nursing Home Could Get Easier Under Proposed Federal Rules

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NPR did a recent article pertaining to nursing homes.  They interviewed several individuals who were in nursing homes and had family members in nursing homes. Dean Cole had severe dementia.  He would wander at night. He also forgot how to drink water. Since his wife could no longer care for him, they  checked him into a Minnesota nursing home.   From there, he went down hill.  According to the family attorney, in a little over two weeks he had lost 29 pounds and went into a coma.  Dean Cole was rushed to the hospital, and what was discovered was that he’d become totally dehydrated. They did get his fluid level up, but he was never, ever able to recover from it and died within the month.

When Mr. Cole’s wife had him admitted to the nursing home, she signed a large stack of documents.  One of those forms was a legally binding agreement that she would go to a arbitrator to have her claim heard instead of a court of law.  She followed the agreement and had the claim for wrongful death heard by three private arbitrators. They charge for their services. The bill for the arbitration serves was $60,750.00 which was split between the parties.  Even though she won her claim, after paying the arbitrators, expert witnesses and attorney’s fees, she was left with less than $20,000.

Hopefully, new proposed federal rules would aim to minimize the use of antipsychotic drugs and increase training for nurses in dementia care.  The federal government is now considering safeguards that would regulate the way nursing homes present arbitration agreements when residents are admitted.

But more than 50 labor, legal, medical and consumer organizations have told the government that’s not enough. They want these pre-dispute arbitration agreements banned entirely. Thirty-four U.S. senators and attorneys general from 15 states and the District of Columbia also have called for banning the agreements.  According to Harry Waxwman, a former congressman from California, arbitration agreements keep the neglect and abuse of nursing home residents secret because the cases aren’t tried in open court and resolutions sometimes have gag rules.

The proposed new rules would require nursing homes to explain these arbitration agreements so that residents or their families understand what they’re signing. It would also make sure that agreeing to arbitration is not a requirement for nursing home admission.

The American Health Care Association, which represents most nursing homes, is against this proposed change in the rules, because according to them, they already do those things.  Although, they acknowledge practices vary from facility to facility, depending on state law. The AHCA rep says arbitration is more efficient for both sides than going to court would be. He thinks that consumers get an expedited award, and you have the benefit of not having to use the courts and go through the entire process. But that expedited award is about 35 percent lower than if the plaintiff had gone to court. That’s one conclusion of a study commissioned by AHCA in 2009. If the federal government does regulate or ban the signing of arbitration agreements for new nursing home residents, AHCA will probably fight the move in court.

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