Personal Injury Law

Nursing Home Arbitration Act of 2009

By Jane Akre

Minnesota resident Dean Cole, 72, was suffering from dementia when his family decided he would receive the best care possible in a nursing home. 

Cole needed help eating every day and had become combative and agitated, making his daily care too much for his wife to handle. He was supposed to be receiving help at the Golden Living Center Greeley. 

Instead, Cole spent just 21 days in the facility. He lost more than 20 pounds and became severely dehydrated. His kidneys and brain shut down and in less than one month he was dead.

In December, his family brought a wrongful death lawsuit against Golden Living Center Greeley for not preventing his dehydration and for failing to maintain his weight or alerting his doctor.   

His wife had been assured during her daily visits that her husband was eating. It was only after he was taken to the hospital in a coma she found out he had not.   

When his family tried to bring a lawsuit against the home for negligent care, they found they were instead facing binding arbitration, an alternative to a trial by jury that forces the injured to sit before a panel to decide the outcome of a dispute.

The Cole family's lawsuit is still pending. 

The bipartisan Fairness in Nursing Home Arbitration Act of 2009 has been introduced to balance the playing field.  

The bill makes invalid agreements by both parties to go to arbitration to settle a dispute rather than seek redress through the courts.  Often binding arbitration clauses are hidden in small print within a nursing home contract.   Arbitration can be a one-sided mandatory and binding process if the panel is selected by the industry that is seeking protection. 

Rep. Linda Sanchez (D-CA) introduced the bill in the U.S. House last week. 

"The Fairness in Nursing Home Arbitration Act will make sure negligent nursing home corporations can be held accountable by our most vulnerable citizens," says American association for Justice President Les Weisbrod.

Any arbitration should be voluntarily agreed to, adds Weisbrod, and not hidden in fine print of a contract.  

Considering a Nursing Home?

You might want to consider the recent report from the Department of Health and Human Services. 

Among for-profit nursing homes, 94 percent were cited for health and safety standard violations last year.  The majority, two-thirds of nursing homes, are owned by for-profit companies.

And 17 percent had deficiencies that caused "actual harm or immediate jeopardy" to patients.

Problems include infected bedsores, medication errors, poor food, and abuse and neglect of patients.  About 20 percent of the more than 37,000 complaints inspectors received last year concerned abuse or neglect of patients.

Non-profit owned homes, about 27 percent included in this survey, did not fare much better. 88 percent were cited for violations, and 91 percent of government operated homes were cited.

The best care can be found in homes that have a high ratio of nursing staff to patients.  #

Full post as published by InjuryBoard on March 10, 2009 (boomark / email).