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Understanding Nursing Home Contracts

We recently wrote a post exposing how nursing home contracts manipulate residents with their hidden legal language, and the serious harm these contracts cause. We detailed the truth about forced arbitration clauses and the nationwide fight to remove them from contracts of all types, and particularly nursing home admittance contracts.

Understanding nursing home contracts.Resident's Murder Unrecognized by Her Nursing Home

In its series on forced arbitration, the New York Times reports on a murder in a Massachusetts nursing home. Elizabeth Barrow, a 100-year-old resident of Brandon Woods Nursing Home, was murdered by her roommate, a 97-year-old woman diagnosed with dementia, paranoia, and delusions.

The roommate, Laura Lundquist, was jealous of Barrrow, saying she received extra attention, had visitors too often, was stealing her belongings, and had too many flowers. Barrow’s only son, Scott, asked for his mother to get a different roommate, but staff refused.

A few months later, Barrow asked a worker for help moving a table, which made her roommate so angry that she physically abused the employee. It took two people to calm her down.

The next morning, Barrow was found dead, with a plastic bag over her head. Lundquist was charged with murder, but she was unfit to stand trial. Scott Barrow knew charging an elderly, mentally handicapped woman wouldn't be the right way to seek justice for his mother.

He wanted accountability from the nursing home.

The nursing home's staff knew Lundquist was violent and dangerous. Scott wanted to hold the facility responsible for allowing his mother to live feet away her and refusing to hear his requests. Barrow continues his fight against the nursing home more than six years after his mother’s death.

Forced Into Arbitration

The problem: Barrow’s admissions contract contained a clause forcing all disputes – even those involving murder charges – into private arbitration. Private arbitration is a way of resolving legal disputes without a judge or jury, away from public awareness. Both the proceedings of the dispute and the final resolution are kept confidential.

At first, Barrow was optimistic about arbitration. There were files of records detailing Lundquist’s past violence. He was disillusioned when he found out the law firm running the arbitration had handled more than 400 other arbitrations for the nursing home, making it a very important client. The arbitrator ultimately ruled in favor of the nursing home, offering no explanation.

Unethical Contracts

Since his mother’s death, Scott Barrow has been fighting to bring his mother’s case into the courtroom. Next month, in March 2016, he will finally get that chance.

Barrow’s case is much more than a wrongful death claim. The case will determine the legality of requiring nursing home residents to sign admissions contracts containing forced arbitration clauses.

Arbitration clauses exist in tens of millions of contracts, from cellphones to credit cards to employment agreements. Often, the consumer is never affected by these clauses. Nursing homes, however, are entrusted with caring for our nation’s sick, vulnerable, elderly, and disabled. They are not AT&T, or American Express, and should not act as such.

Why, then, have nursing homes been embracing arbitration clauses in their admissions contracts?

Admitting a loved one to a nursing home is one of the most difficult decisions a family will ever make. Not only is forcing residents and families to sign contracts they don’t understand or agree with unethical, immoral and predatory, but keeping disputes out of public knowledge is extremely dangerous.

The Importance of Fighting Arbitration

Part of the reason nursing home abuse and negligence lawsuits are so effective and important is because they expose poorly-run nursing homes and abusive staff members. Today, most nursing homes are owned by large, for-profit chains like HCR ManorCare. If many lawsuits are filed against a specific facility for similar injuries, abuses or mistreatments, it publicly exposes a pattern of wrongdoing. Forcing disputes into arbitration hides any and all patterns of negligence, allowing it to continue and harm residents for years to come.

Knowing this, officials in 16 states and the District of Columbia recently urged Medicare and Medicaid to stop funding nursing homes that include arbitration clauses in their contracts. In addition to the previously-mentioned reasons, this was done because judges consistently uphold the clauses, even when residents or families didn’t at all understand what they were signing. Contract law dictates that signed contracts are legally binding, no matter the circumstances.

In one case in Mississippi, for example, a nursing home resident who could not read, write or sign his name attempted to invalidate his arbitration agreement. The judges held that illiteracy alone was insufficient to throw out the agreement under state law.

However, appeals courts do throw out arbitration agreements signed by anyone who is not the resident or their power of attorney. Lawyers have had to make hyper-technical arguments about the validity of who is allowed to sign these contracts.

Our nursing home negligence lawyers at Pintas & Mullins have 30 years of experience fighting on behalf of residents and their families. We understand how devastating these injuries are, and have a wide support network to help families get through this difficult time. If you have any questions about elder law, nursing home mistreatment, or any other injury issue, contact our firm for a free consultation.