After the untimely and painful death of her father, a woman in Minnesota is having a difficult time filing a wrongful death lawsuit against the nursing home that failed to provide timely care. Her trouble stems from a section of the contract she signed when her father was admitted to the home called an “arbitration clause.” This clause prevents residents and sometimes their families from pursuing legal action against nursing homes in court in the case of medical malpractice, neglect, or wrongful death. Instead, the victim may be forced to settle the matter out of court using arbitration.
Joan Maurer’s father, Gerald Seeger, died at the age of 89 in 2014 when he suffered an untreated hernia. She arrived one afternoon at his room in the assisted living facility Lighthouse of Columbia and found that he “had turned ashen and was vomiting in plastic cups.” According to a state investigation that occurred after his death, Seeger had also “repeatedly vomited and screamed for help while pointing to his badly swollen stomach.”
For some reason, the staff had not summoned emergency medical services. Maurer immediately asked the staff to call 911 and rode with her father in the ambulance to the emergency room. She said she “was horrified,” adding, “I never want to see another human being in that much pain for as long as I live.”
Seeger had a history of hernia problems and the staff at the home was instructed to notify a physician immediately if he had any reoccurring symptoms such as tenderness or pain in the abdomen or groin area. The facility was cited for “failing to provide timely medical care.”
Unfortunately, when Maurer signed the residency agreement provided by the facility, she was agreeing to something called an “arbitration clause.” These clauses are commonly used in nursing homes to protect the facilities from litigation in court. In arbitration, a third party hears both sides of the case and the matter is settled without a trial. There have been cases, however, in which certain conditions at the time of entry may negate the clause. For example, this January, a court in Texas refused to enforce an arbitration clause because the resident had dementia and lacked the mental capacity to understand the document at the time of signing.
Some parties, however, are beginning to push back against arbitration clauses, which can prevent victims of abuse from speaking out publicly against their abusers. In 2016, the Centers for Medicare & Medicaid Services (CMS) “issued a rule that bars any nursing home that receives federal funding from requiring that its residents resolve any disputes in arbitration, instead of court.”
Unfortunately, a couple of months later, a federal judge in Mississippi blocked the rule, saying that the CMS did not have the power to implement it. In the next few months, the legality of arbitration clauses will continue to be debated, especially when government funding is involved.
If you are considering entering a nursing home or admitting a loved one to a long term care facility, be careful what you sign. For guidance on your and your loved one’s legal rights and protection in wrongful death or neglect cases, call the office of trial attorneys Charles Gilman and Briggs Bedigian at (800) 529-6162 or contact them online. The firm handles cases in Maryland, Pennsylvania, and Washington, D.C.