Considering a Nursing Home? Read the Fine Print

You’d think it would be a safe place for your loved ones, yet accidents and negligence in a nursing home happen more often than you might realize.  Sometimes the facilities get away with it.  Sometimes they might even be getting away with murder.

In a widely publicized case back in 2005, the legendary world pro wrestling champion Verne Gagne body-slammed a 97-year old fellow patient at a Minneapolis suburban nursing home.  The ensuing injuries eventually resulted in the fellow patient’s death. 

There was a bittersweet ending.

In this case, the man who also discovered and promoted such wrestlers as the Crusher, Jesse Ventura, and Hulk Hogan was not charged with any crime.   Gagne had Alzheimer’s disease and even the victim’s widow didn’t want to prosecute.  The case faded from the spotlight when neither man could remember the incident the next day.

What if, however, there was evidence that the nursing home or members of the staff were negligent in protecting a potentially violent resident from causing harm to themselves or others?

In many cases like this, friends and family members are not allowed to sue the nursing home facility.  This is due to the fine print in many nursing home agreements signed by incoming residents.   The language eliminates access to the courts by requiring disputes be settled by forced arbitration clauses.  Basically, this clause can protect a nursing home from accountability in the case of an incident that causes harm to a resident.

The issue is now getting attention in a special session of the U.S. Congress.  As reported in the New York Times last month (April 2016), a ranking member of the House Judiciary Committee, Representative Hank Johnson of Georgia, “implored Congress to strictly curtail the use of mandatory arbitration, in which judges and juries are supplanted by arbitrators who often consider the companies their clients.”

The special session is part of diverse efforts across the country to prevent companies from inserting arbitration clauses in contracts.

The Times piece goes on to say, “Today, it is virtually impossible to rent a car, get a job, borrow money for college or enroll an elderly parent in a nursing home without signing away the right to go to court. The clauses, buried in the fine print of tens of millions of contracts, bar Americans from banding together in a class-action lawsuit, the only realistic way that an individual with limited resources can fight a wealthy corporation.”

It is almost certain that progress on this issue in Congress will be slow.  Opponents contend that nursing home patients do not give up their right to go to court even after signing those contracts that require disputes to be settled by arbitration.  Yet, there are thousands of cases where the contrary is true.  Like many other legal issues, there are many complexities, including those small print rules and exceptions. 

It is also important to note that there was a landmark decision last month that pertains to all of this.   The son of a 100-year old woman who was allegedly strangled to death by her 97-year-old roommate has won the right to sue a Massachusetts nursing home despite signing a contract that called for arbitration.   A lot of legal advocates for the elderly will be closely watching this case. 

No matter what your views are on this issue, one thing is clear:  Before you sign any contract, read the fine print.  Many elderly patients are often too ill or distressed already, so it is easy for them to miss some of the ‘hidden’ clauses in the contract.  As a loved one, take the time to study such a document to be sure you are not getting into something you all might regret later.  To be fair, there are many facilities that do not require arbitration and giving up your right to take legal action in case of a problem.

If you suspect negligence on the part of the nursing home that has caused illness, injury, or even death, contact us immediately.  The lawyers at Theodoros & Rooth take these cases very seriously and will aggressively provide representation until the dignity and full rights of the individual are restored, including a settlement that includes just compensation.