Earlier this month, the Supreme Court of Georgia issued a written opinion in a nursing home negligence case that required the court to determine if an arbitration agreement in a pre-admission contract was binding against the deceased resident’s estate in a subsequent wrongful death lawsuit. The court determined that due to the derivative nature of wrongful death lawsuits, the deceased resident’s estate was bound by the agreement.

Signing a ContractThe Facts of the Case

The plaintiff in this case was the husband of a woman who had died while in the care of the defendant nursing home. Prior to the plaintiff’s wife’s admission to the nursing home, the plaintiff’s wife had executed a durable power of attorney in her husband’s favor. This allowed him to make legal decisions regarding his wife’s medical and financial decisions.

Before the plaintiff’s wife was admitted into the defendant nursing home, the plaintiff signed a pre-admission contract that contained an agreement to arbitrate any claims that may arise from the nursing home’s care of his wife. The plaintiff signed the agreement.

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It is common for anyone seeking admission into a nursing home to be presented with an arbitration agreement prior to being admitted. These arbitration clauses are often hidden in large paragraphs of small print and are easy to overlook. However, once signed, arbitration clauses often waive important rights and can have a major effect on a party’s ability to file a lawsuit against the nursing home, should anything go wrong in the future.

Binding ContractWhile a valid arbitration agreement may prevent a victim of nursing home abuse or neglect from using the court system to pursue a case against the at-fault nursing home, not all arbitration agreements are valid. In fact, a series of recent court decisions across the country has indicated courts’ willingness to declare arbitration agreements invalid when they are not signed by the appropriate party, too hidden, or entered into by an incompetent party.

A recent case out of Florida illustrates how courts may choose to invalidate an arbitration agreement when the person signing the contract is not the resident themselves.

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Late last month, one lawmaker introduced the Protecting Access to Care Act, which, among other things, would limit certain damages awards to the victims of nursing home abuse and neglect. While the Act does not mention nursing home victims specifically, the broad changes proposed by the Act would, in effect, limit the availability of non-economic damages for nursing home abuse and neglect victims. It would also limit the amount of compensation nursing home abuse and neglect victims could receive for their pain and suffering.

Capitol BuildingThe Act

According to one news source, a proponent of the Act claims that it will “throw blame out the window” and will allow for all involved parties to focus on how to prevent accidents rather than engage in post-accident litigation. The Act applies to anyone covered under Medicare, Medicaid, military health plans, and the Affordable Care Act, and caps damages against doctors, hospitals, and nursing homes in many situations. In addition, the Act would provide legal immunity to pharmaceutical companies whose products harm patients, so long as the product was FDA-approved.

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A family’s worst nightmare may be that their loved one is being abused in a long-term care facility, but neglect is another form of mistreatment, and can also have devastating consequences. Neglect is the failure to care for a person in a manner that would avoid harm and pain, or the failure to react to a situation that may be harmful. Neglect can be intentional or unintentional. Examples of unintentional but neglectful care include: incorrect body positioning, lack of assistance eating and drinking, lack of bathing, and ignoring calls for help.

Dark HallwayAbuse and neglect often are not obvious, but there may be signs that can hint at both. Some of these signs are dehydration, malnutrition, bruises, food poisoning, poor hygiene, bed sores, falls, and wandering. There are different statutes and regulations that protect the rights of senior citizens and nursing home residents.

Rights of Nursing Home Residents

Nursing home residents have the right to live in a safe environment and to be free from mistreatment. Mistreatment involves abuse, including physical, mental, verbal, and sexual abuse, neglect, or the failure to provide proper care to a resident, and exploitation, or the illegal or improper use of a resident’s money or belongings.

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Despite the fact that sexual assaults occur in nursing homes across the country on a routine basis, claims of sexual abuse are consistently too slow to be reported to authorities or investigated by nursing homes when claims are made by residents. According to an in-depth investigation conducted by CNN, most cases of sexual assault in nursing homes do not make it out of the nursing home. This is due in part to the fear of nursing home management that the disclosure of any sexual abuse may result in legal liability.

Dark HallwayAccording to the report, more than 16,000 cases of sexual assault have been reported against nursing home employees since 2000. However, that figure is believed to be much lower than the actual rates of sexual abuse, due to the gap in reporting. It is believed that many victims of nursing home sexual abuse do not report the abuse for several reasons. For example, many nursing home residents fail to report because they are embarrassed of what happened to them. Sadly, those who do report their abuse are often met with skepticism by staff and sometimes even family members.

Another reason why the statistics of abuse may be lower than in reality is that many times nursing homes insist that any out-of-court settlement between a resident and the nursing home be kept confidential and be made without the nursing home needing to admit fault. Notwithstanding that reality, the article discovered over 1,000 cases in which nursing homes were cited for failing to prevent or report instances of sexual assault against a resident.

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In all personal injury cases, both the plaintiff and the defendant must exchange certain information and documents with each other that they plan to use at trial or that may be helpful for the other side in proving or defending against the case. This is called pre-trial discovery. Often, there is significant litigation surrounding the pre-trial discovery process because parties may not want to disclose everything in their possession for fear of helping their opponents.

DocumentsIn cases naming a nursing home, hospital, or medical professional as a defendant, the argument that a defendant often uses to withhold what may otherwise be mandatory discovery is that the request documents are “privileged” and need not be disclosed. For a document to be considered privileged, there must be some underlying statute or rule stating that is the case. A common example of privileged information is the communication between an attorney and his clients.

Illinois Nursing Home Is Ordered to Release Documents It Claimed Were Privileged

Earlier this month, an appellate court in Illinois issued an opinion that required a nursing home to release certain requested documents to a plaintiff in a medical malpractice lawsuit. Originally, the nursing home refused to release the documents, claiming that they were privileged under the state’s Medical Studies Act. The Medical Studies Act protects “records, reports, statements, notes or other data” that is related to the internal quality control measures of a nursing home. The idea behind the privilege is that the government does not want to discourage nursing homes from seeking to improve care by internally acknowledging that they could have done things differently in the past and potentially avoided an accident.

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Nursing homes and other long-term care facilities are charged with caring for those who are not able to fully care for themselves. The duty that a nursing home owes to its residents is a broad one, ranging from providing residents with assistance in completing daily tasks to ensuring their physical safety. Included in the duty nursing homes owe to their residents is the obligation to ensure that any medications that are prescribed to the residents are properly administered.

MedicationWhen a nursing home is negligent in administering a resident’s medication, the nursing home employee responsible for the mistake, as well as the nursing home’s management, may be liable for any injuries caused as a result. These nursing home negligence lawsuits can result in significant liability for a nursing home, and the pressure exerted by this potential liability has led some nursing homes to implement additional safety features when it comes to the delivery and administration of patients’ medication.

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Over the past few decades, arbitration clauses have become ubiquitous in the contracts that residents (or their family members) must sign prior to being admitted into the nursing home. These arbitration clauses may act to prevent a nursing home resident or their family from pursuing any legal action in the court system against the nursing home. Instead, these claims are settled through an arbitration company that will hear both sides and issue a binding decision. Arbitration clauses are enforced without regard to the strength of the evidence, meaning that even the strongest cases of nursing home abuse and neglect may be prevented from ever reaching a courtroom.

DocumentThe problem for nursing home residents and their families is that the nursing home selects the arbitration company in the pre-admission contract. As a result, the companies that are selected are potentially biased in favor of nursing homes. Additionally, the language of the arbitration clause is often buried deep in dense paragraphs, making it unlikely that potential residents or their family members will read and comprehend the rights they are giving up by signing the contract. This has led many arbitration contracts to be held to be invalid as a matter of law and also as a matter of good public policy.

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Earlier this month, the family of a nursing home resident who allegedly was tied to a wheelchair and given medication without her permission filed a lawsuit against the nurses as well as the nursing home, seeking $17 million in compensation. According to a local news report covering the recently filed case, the complaint claims that two nurses from the facility used bed sheets to tie down the plaintiff’s mother and then administered narcotic medication to “silence” her.

SyringeAccording to the plaintiff’s complaint, on the next morning, nurses found the plaintiff’s mother still tied to her wheelchair. She had allegedly soiled herself over the evening.

Additionally, the plaintiff claims that the nursing home did not disclose this occurrence to her and actually went so far as to cover it up. Specifically, the plaintiff alleges that the nursing home fired nurses who brought the conduct to the attention of management. The plaintiff characterizes the nursing home’s internal investigation as “clandestine and superficial.”

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According to a report that has been recently published by a local news source, several residents at a nursing home appear to have been victimized by acts of physical abuse committed by nursing home staff. Some of the abuse was witnessed by other residents or staff, but it had not been reported until a state investigation at one home uncovered nine possible victims of abuse, six of whom required additional administrative action. Despite that, law enforcement had not been contacted for any of those alleged acts of abuse.

Wrinkled HandLaw Enforcement Hears of Abuse, But It’s Too Late to Pursue Charges

The author of the report interviewed a spokesperson for the local police, who only heard about the alleged abuse from the media and reports of the administrative action and other state action taken against the home. According to the report, the police department expressed concern that they only just heard of the abuse, and they stated that they were not in a position to make any arrests because the state action disrupted the element of surprise.

Whether the police department could still investigate and pursue charges or not, at this point, charges appear unlikely. Although criminal charges may not be an option to hold the perpetrators of any abuse responsible for their acts, a civil nursing home abuse claim may be available to stop any abuse and recover damages for economic and non-economic harms that the victims of abuse have suffered.

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