Nursing home arbitration agreements are commonly pushed on new residents of nursing homes and long-term care facilities in Florida. These are binding contracts in which the resident and/or the resident’s representative agrees to sign over their legal rights to pursue action against the nursing home in civil court if there is a dispute. Instead, the patient agrees to have any disputes handled by an arbitrator. Many don’t recognize this, but arbitrators don’t have to follow the law. In many cases, they are paid handsomely by the regular cases they get from the company, which provides an incentive to decide cases more favorably toward the defendant. And none of the proceedings – or the outcomes – are public.
Why would anyone agree to such a system? The truth of the matter is, most people don’t realize they are. The agreement is often stuffed in a mountain of admissions paperwork right when they are first signing in – an overwhelming experience as it is.
Although courts do recognize the validity of such agreements as binding contracts, there have been an increasing number of cases in which courts have decided these agreements violate public policy or for other reasons are not valid. The recent case of Tarvin v. CLC of Jackson is one of those. This was a case recently weighed by the Mississippi Supreme Court, but the legal principles are still relevant to those of us here in Florida.
According to court records, plaintiff’s father, decedent, was admitted to defendant nursing home in August 2007. Plaintiff, his daughter, signed the admission agreement on his behalf as his “responsible party.” Two other family members also signed the agreement as “family members,” but the patient himself did not sign the document. Among the many terms and conditions of his admission was an arbitration agreement.
He lived at the facility for more than three years. Then in January 2011, he was rushed to the hospital when staff discovered numerous life-threatening sores all over his body. Despite receiving treatment at the hospital, patient died in May 2011.
Pressure sores are one of those kinds of nursing home injuries that should just never happen. They are caused by a person sitting or laying in one position too long without being cleaned or turned.
Plaintiff as representative of decedent’s estate filed a wrongful death lawsuit against the nursing home alleging her father had suffered serious nursing home abuse and neglect that resulted in weight loss, malnutrition, dehydration, skin tears and of course, the sores.
Defense in its response moved to compel arbitration. Attached in its motion were documents indicated that decedent’s doctor, prior to his admission, wrote in medical records that he was “obviously demented at this time.”
Plaintiff responded that first of all, the company waived its right to compel arbitration because it participated in litigation. But beyond that, she had no legal authority to bind her father to that arbitration agreement. She was not his listed power of attorney or conservator.
Trial judge upheld the motion to compel, citing the patient’s doctor’s report indicating he did not have the legal capacity to sign on his own behalf. Plaintiff countered that the physician’s notes were based on the doctor’s observations that her father was disoriented, but there was never a diagnosis made with regard to his mental state.
Plaintiff appealed to the state supreme court, arguing no valid arbitration agreement exists. The state supreme court agreed. The court ruled the Uniform Health Care Decisions Act requires a finding by a primary physician that a person lacks capacity before a surrogate can be assigned to make health care decisions for that person. The record here didn’t support that finding. The court remanded this case back to the lower court for trial.
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Tarvin v. CLC of Jackson , June 23, 2016, Mississippi Supreme Court
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