February 01st 2011 by John Bisnar
Do you ever read all the fine print in the long consumer contracts you receive? If so, you’ve probably noticed a “mandatory arbitration” clause buried deep inside the contract. Most consumer contracts now have them — even contacts for nursing homes. By entering in a nursing facility, seniors or their families often have to agree that even if the nursing home harms, neglects, or abuses the senior in its care, the senior has no right to go to court to protest. It means the senior has no right to a judge, a jury, or a right of appeal. Also, the arbitrators do not have to follow the law, and there is no public review of the arbitrator’s decisions to make sure that he got it right. Additionally, forced arbitrations are often more expensive than taking a case to court.
A recent report from the American Association for Justice, entitled “Standing Up for Seniors: How the Civil Justice System Protects Elderly Americans,” studied the devastating effect of these forced arbitration clauses on nursing homes residents. The stories in the report are heartbreaking, and illustrate how unfair these clauses can be for seniors.
It Happens More Than You Think
One such senior, 93-year-old John Donahue lost an eye because a nurse’s aide caused a mechanical device to puncture his face. To cause further insult to injury, the nursing home waited 15 hours before transporting him to the hospital where the doctors were forced to remove his eye. Donahue contracted an infection and died six weeks later. When his family sought justice in court, they were told that they could not go to court because Donahue had allegedly signed an arbitration agreement four years after being admitted to the home at a time when he was admittedly “confused, depressed and delusional.”
Another nursing home resident, Irene Hight, was left without fluids for 24 hours. Her daughter found her seriously dehydrated and asked the nursing home staff to call an ambulance. The staff refused and Hight’s daughter had to wheel her mother to the hospital across the street. Despite the best efforts of the hospital, her mother died several hours later. When Hight’s family tried to take the nursing home to court, they were unable to do so because of a forced arbitration agreement buried deep in the nursing home contract they’d signed upon admitting Mrs. Hight.
There are many other cases like those of Hight and Donahue’s — cases where the seniors are under considerable stress to sign the contract and have no idea what they were signing. Basically in cases where a senior is injured, is abused by a staff member, develops bed sores, or dies from dehydration or infection caused by inadequate care, signing the agreements means their access to justice in court is essentially cut off.
There is hope for seniors and their families who have forced arbitration agreements in their nursing home contracts. Trial lawyers are taking on nursing homes and their forced arbitration clauses and are having some success getting these seniors their day in court. In the case of John Donahue, lawyers for the family fought the forced arbitration clause and a court finally agreed to allow the case to go forward.
If you or someone you love has been injured in a nursing home, even if there is an arbitration clause in the nursing home agreement, you should talk to an experienced nursing home abuse lawyer. Call your best friends in the legal industry. Call the BISNAR|CHASE personal injury lawyers in Los Angeles at 800-849-4905. We may be able to help you get your day in court. If you want to know your rights and what your case is worth, you should call today. The call is free. The advice may be priceless.