Nursing home arbitration agreements have become the norm in the nursing home admission process. Assisted living and nursing home facilities know that when individuals and families make the decision to place their loved one in a full-time care facility, they may be in emotional turmoil. They may be concerned about finances. They aren’t necessarily concerned about reading the fine print in the middle of the dictionary-sized admissions paperwork that in effect requires them to sign away their legal access to the court system in the event they or their loved one is a victim of nursing home abuse or neglect.
The practice has been widely derided, and there have been some calls for the federal government to intervene and make the practice illegal. So far, that hasn’t happened. And while courts generally do uphold arbitration agreements, many judges – including those in Florida – have been taking issue with certain elements of such agreements that are inherently unfair or that render them not legally enforceable. For example, some family members will sign away a resident’s legal rights when in fact they did not have the authority to do so. In other cases, judges are finding these agreements are strictly against public policy.
The recent case of Olson v. Florida Living Options, Inc., before Florida’s 2nd District Court of Appeal, yet again involved one of these arbitration agreements.
According to court records, the personal representative of the estate of decedent appealed a non-final order that granted the motion to compel arbitration with the nursing home at which decedent died. Plaintiff alleges the skilled nursing facility breached its duty of care and was negligent in its treatment of decedent, causing his death. Defendants sought to compel arbitration, which is generally deemed by defendant corporations to be a more friendly process. Records aren’t made public, arbitrators don’t have to follow the law and decisions are often skewed in favor of the company, which keeps arbitration firms on retainer.
The 2nd DCA, in ruling the nursing home negligence claims raised by the estate weren’t within the scope of the arbitration agreement, reversed and remanded the case back to the trial court.
Plaintiff had alleged the elderly decedent sustained numerous personal injuries during his stay at defendant nursing home. Defendant filed a motion to compel arbitration. It was noted that in the agreement, there was a provision indicating the agreement covered the full course of residency, even if patient was re-admitted following a discharge and that the agreement would cover all future admissions.
But the issue here was that the agreement was signed by decedent with regard to his care at the assisted living facility. Yet it was being utilized by the skilled nursing facility at which he later became a resident, which was owned by the same company as the assisted living facility. It was plaintiff’s contention that the agreement with the assisted living facility couldn’t be utilized by the skilled nursing facility to compel arbitration. These were two separate companies, even though they were owned by the same firm. The 2nd DCA agreed with plaintiff. However, even if they assumed for a moment that defendant could prevail on this point, the court took its analysis a step further in analyzing the scope of the arbitration agreement. The arbitration agreement signed by decedent specifically references the assisted living facility – not the skilled nursing facility – and it is not disputed that that the negligence reportedly occurred while decedent was a patient at the skilled nursing facility. A “contract” signed by patient upon admission to the skilled nursing facility makes not reference to arbitration. Thus, the allegations as they pertain to the skilled nursing facility don’t have anything to do with the agreement signed with the assisted living facility.
If you or a loved one have been a victim of nursing home abuse in Florida, call Chalik & Chalik at (954) 476-1000 or 1 (800) 873-9040.
Olson v. Florida Living Options, Inc., Sept. 9, 2016, Florida’s Second District Court of Appeal
More Blog Entries:
NHTSA: Non-Traffic Accidents are a Serious Problem, Sept. 14, 2016, Miami Nursing Home Abuse Lawyer Blog