Negligence Without Consequence

Courts begin to hold nursing homes accountable.

Good news. A legal shield that, for years, has enabled negligent nursing homes to escape accountability is beginning to crumble.

State courts around the country are beginning to throw out forced arbitration clauses in patients’ admission contracts—provisions which deny their right to sue—in the event the nursing home injures them. That’s a major change, and offers new hope for families who turn to institutions to care for their loved ones.

A recent New York Times article on this development offers one of the most powerful examples I’ve seen of what’s wrong with forced arbitration—and how, in some cases, it can be avoided.

The piece, which bears recounting at length, discusses the murder of Elizabeth Barrow, who at 100, was found dead at her nursing home, “strangled and suffocated, with a plastic shopping bag over her head.” Police said Barrow’s 97-year-old roommate had killed her—a woman whom a worker at the Brandon Woods nursing home had already recorded in patient files as being “at risk to harm herself or others.”

The roommate, the Times explains, had been diagnosed with dementia, delusions, anxiety disorder, depression and paranoia, but nursing home staff dismissed the concerns of Barrow’s 67-year-old son, Scott, that his mother might be in danger.

After the murder, Scott Barrow tried to hold the nursing home accountable for its negligence, but he was barred from taking Brandon Woods to court in 2010 because his mother’s contract with the nursing home contained a clause that forced any dispute, even one over wrongful death, into private arbitration.

The clause was just one of many legal agreements the elderly Barrow had been asked to consent to at the time of admission. Her son, who physically signed the papers on her behalf, later said he never imagined an arbitration clause would apply to a wrongful death, and in fact, never told his mother about the clause.

After her death, he agreed to submit his claim to arbitration, but his hope soon turned to dismay. Many of the traditional rules of due process were absent, including the ability to conduct discovery, depose witness, and have a neutral judge decide issues of law. When the arbitrator ruled against him without even giving a reason, Scott began to suspect bias. Indeed, his attorneys discovered that the arbitration firm handling the hearing had previously decided on more than 400 arbitrations for the law firm representing the nursing home.

Scott then took the issue to court, using a new argument. He asked a judge to declare that he had no right to sign the contract, since he had been authorized by his mother only to make medical decisions on her behalf, not legal or financial ones. It worked. An appellate court ruled the contract invalid. That cleared the way for a civil jury trial. The Times concludes:

It is a straightforward argument that is catching on. Appeals courts across the country have been throwing out arbitration agreements signed by family members of nursing home residents [who never authorized them to do so].

That’s a hopeful development—a first tiny first crack in a wall that for too long has been shielding negligent nursing home operators from accountability. The goal should be to tear the wall down.

Elizabeth Barrow’s tragic death reminds us that mandatory arbitration is unjust when “agreed to” before a dispute has arisen. The parties can never really know the nature or extent of an injury before it happens. Moreover, the admission of a loved one to a nursing home can be fraught with stress. There’s usually little actual choice involved, in either the decision to enter a facility or the decision of which facility to enter. Families are vulnerable.

And even if pre-dispute forced arbitration weren’t morally problematic, it is unconstitutional, thanks to the Seventh Amendment, which declares that in civil disputes “the right of trial by jury shall be preserved.” That right trumps any federal law that might purport to protect the practice.

Congress should follow the Constitution—and the lead of the state courts—and make these harmful clauses optional.

Dean Clancy, a former senior White House and congressional aide, writes on U.S. health care, budget, and constitutional issues. Follow him at deanclancy.com or on twitter @deanclancy.


[Originally published at USNews.com, March 10, 2016. @USNewsOpinion. Republished at DeanClancy.com.]

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