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It does not get much more stressful than the experience of admitting a cherished family member to a nursing home. Unfortunately, this experience is all too common in Ohio and across the U.S., with nearly 1.5 million patients currently in long-term care facilities. A family member already grieving for the declining health and independence of his or her loved one faces the challenge of finding the rare opening in a decent care center, and of getting through all the red tape of the admissions process.
Part of that experience usually involves signing a long, complicated admissions agreement. More often than not, the agreement contains a mandatory arbitration clause that relinquishes the resident's right to sue in court or file a complaint with an administrative agency in case of subpar care, medical malpractice, violation of rights, negligent or malicious injury, neglect, abuse, exploitation, isolation and other grievances.
What Do Residents and Families Face?
The Centers for Medicare and Medicaid Services found that at least 91 percent of U.S. nursing homes reviewed - and 87.5 percent of Ohio nursing homes - had been cited for deficiencies from 2005 to 2007, mostly in quality of care, quality of life and resident assessment. A higher percentage of deficiencies was found at private nursing homes run for profit, as opposed to public or nonprofit facilities. Private for-profit facilities are sometimes suspected of putting profit before residential care and cutting corners on staff ratios, training, personnel screening, security, cleaning, recordkeeping, maintenance, equipment and other expenses of doing this important business.
Nursing home injuries may include:
- Broken bones from falls
- Lacerations and bruises
- Skin problems like bed sores or infections such as sepsis
- Dehydration and malnutrition
- Death
With odds like this, what can families do? Visit often, unannounced if possible. Keep your eyes open for signs of trouble in your loved one like depression, anxiety, behavioral changes, weight loss, bruising, lacerations, withdrawal and lack of interest. Review your loved one's records regularly. Talk with the staff and ask lots of questions.
If, despite your best efforts, your loved one is the victim of abuse, neglect or medical malpractice, take steps immediately to protect him or her physically and emotionally; alert the appropriate authorities; and talk to an elder law attorney as soon as possible. You should learn about all of your legal options, which could include various types of civil lawsuits like negligence, premises liability, inadequate security, medical malpractice, assault and battery, false imprisonment and possibly breach of contract. Money damages might include reimbursement for medical expenses, pain and suffering, mental pain and, in the worst case, wrongful death. Punitive damages to punish the wrongdoer may be another possibility. Potentially responsible parties include staff, managers, supervisors, owners and insurers.
Mandatory Arbitration Clauses Can Block Other Legal Remedies
When nursing home admissions contracts include mandatory arbitration provisions, the result can be disastrous. Such clauses require the patient and his or her family to resolve legal disputes with the nursing home using a neutral arbitrator, rather than taking the matter to court for consideration by a judge or jury. Significant legal and civil rights may be waived by agreeing to an arbitration clause in lieu of the judicial process.
Ohio Law Provides Some Hope
Ohio law may provide a basis for striking down these arbitration clauses. They will not be enforceable if there are legal or equitable means to revoke them, such as unconscionability. Ohio courts will consider whether an arbitration clause is substantively and procedurally unconscionable, meaning that it favors one of the contracting parties so much more as to make the provision inherently unreasonable and unfair. Factors include whether a party had the power to meaningfully bargain for particular terms; whether a party had a choice to sign the contract; whether the contract terms were reasonable; and whether the parties had equal bargaining power. Ohio courts have gone both ways with nursing home arbitration clauses, so it is in your best interest to talk to an experienced lawyer.
In addition, the Ohio Department of Health (ODH) considers nursing home arbitration clauses to be "contracts of adhesion." ODH legal counsel cites lack of choice and meaningful negotiation, the stress of admitting a loved one, the need to rush for health and safety reasons, the length and complexity of language in the agreements, the infrequency of retaining a lawyer early enough to review and explain the agreement, and the one-sidedness of the terms.
Ohio law grants nursing home patients human rights and civil rights relating to safety, privacy, autonomy, treatment, and the right to file grievances and lawsuits. The law provides further that the resident may not waive these rights. ODH views mandatory arbitration clauses as violating this law and has stated it will issue citations to facilities insisting on clauses that impede guaranteed civil rights.
Important Federal Development
Currently pending in the U.S. House and Senate is the Fairness in Nursing Home Arbitration Act of 2009, which would amend the Federal Arbitration Act (FAA). This proposed law, if passed, will nullify mandatory arbitration clauses in admissions contracts for long-term care facilities. Supporters of the law are striving to protect this vulnerable population from exploitation by large corporations that want to keep elders out of court, where they can fight for their full legal and civil rights, and where damage awards might be much higher. Reasonable arbitration agreements could still be entered into later, but not as mandated parts of admission contracts.
Retain an Ohio Elder Law Attorney
Be sure to consult with a knowledgeable lawyer with experience in elder law. He or she can advise you about your rights and remedies in an unfair nursing home contract. Your attorney can also keep you informed about developments in state and federal law that could affect the rights of your loved one in case of abuse or neglect.
