Nursing homes, naturally, attempt to protect themselves from any lawsuit filed against them for the treatment of their residents. The extent of how far courts will consider “arbitration clauses”, clauses forcing any claim to be handled outside of the court system and by a trained paid professional chosen by the home, has been up for serious debate. This April, the United States Supreme Court declined to hear an appeal by nursing homes for serious counts of elder abuse where the lower court awarded damages ignoring arbitration clauses within the patient contracts.
Arbitration clauses are often enforced but typically viewed cautiously and with suspicion. Obviously there may be an inherent bias perceived towards the party who is the repeat customer of the arbitrator and in serious cases, courts reserve the right to step in. In the case of Beverly Enterprises, Inc. v. Ping, the nursing home was potentially so negligent that it led to a patient’s death, the representatives of the estate, or family, may still have the right to bring a wrongful death suit for the egregious actions by the home.
One similar case, also declined to be heard by SCOTUS, involved a ruling against an Illinois nursing home for the wrongful death of one its residents. The contract with the family specified that controversies in the amount of $200,000 or more would be bound to arbitration. In ruling to not apply the clause, the Illinois Supreme Court found there was no mutuality of obligation since the daughter signed the agreement as the late mother’s representative and not as a representative to the deceased mother’s family who owns a valid wrongful death claim.
The tragedies of negligent nursing homes is making for big legal news in Indiana. The wrongful death lawsuit filed against Health & Hospital Corporation (HHC) of Marion County and American Senior Communities, LLC (ASC) for their alleged negligent care leading to the death of resident Betty Riley. The cause of death, according to the Coroner’s Office, was medical complications due to the blunt force trauma as a result of a physical altercation with another resident.
The nature of the lawsuit would lead to the family’s potential compensation limited to $300k with the nursing homes only responsible for slightly over half and the other portion being paid from the Indiana Patient Fund.
A report released by the National Center on Elder Abuse found that between 1999-2001 a startling one in three nursing homes in the US received citations for violations that either did or may have caused harm to residents with 10% of the violations resulting in harm or death. The Center stressed that reports by residents places physical abuse as the number one cause of injury.
Incidences of physical abuse by employees, although common, is not the only source of claims against nursing homes. Fighting between residents with failures by the administration to intervene, psychological abuse, neglect, maintenance issues, negligent hiring, improper training, falsifying documents, and other causes of injuries could lead to compensation awards against the home.