Massachusetts Case Challenges Forced Arbitration Clauses at Nursing Homes
Forced arbitration clauses are nothing new in nursing home contracts. Frequently, slipped in among the sheaf of papers you or a loved one must sign when admitting a family member to a nursing home, you’ll find a statement informing you that in the case of any disputes with the nursing home, you cannot go to court. Instead, you have to undergo arbitration, a process in which there is neither judge nor jury but rather an arbitrator. The arbitrator is typically hired by the company or entity you’re having the dispute with, and therefore often sides with them.
Unfortunately, since the arbitrator’s decision is legally binding, if you don’t like it you usually have no recourse.
A case in Massachusetts is challenging this practice, however, with some success. Elizabeth Barrow was a resident at Brandon Woods nursing home in South Dartmouth, MA, when she was strangled and suffocated by her roommate over a minor dispute. Although her roommate was known to have dementia and violent tendencies, she was allowed to room with Barrow. When the investigation into Barrow’s death resulted in criminal charges against the 97-year-old woman who attacked her but none against the nursing home, Barrow’s son, Scott, wanted to press charges. But he couldn’t at the time due to the arbitration clause he’d signed. As a result, since 2010 Scott has been trying to get a court to hear his case, saying that it’s ridiculous that the woman was charged despite it being unclear whether she’s competent enough to be fully responsible for her actions. Rather, Scott says, it was the home’s job to make sure that his mother was safe and protected and to ensure that her roommate wasn’t able to harm herself or others.
At last, Scott is on the verge of presenting his case before a Massachusetts state court, thanks to his tenacity and that of his legal team. The problem in getting cases like this heard is often that judges come down on the side of contract law, declaring the arbitration clauses binding because they are signed, even if the person signing didn’t really understand what it was he or she was signing. But using some fundamental principles of contract law, Scott’s lawyers argued successfully that Scott didn’t have the right to bind his mother to arbitration when he signed the nursing home documents on her behalf when she entered Brandon Woods. Luckily for Scott, in 2014, a judge agreed with him and his lawyers.
The Barrow case should give a measure of hope to people everywhere who were coerced into signing arbitration agreements when their loved ones went into nursing homes and residential care facilities. Although this is often standard practice and has been for the past decade or so, more and more people are fighting back against it. There are now 16 states and the District of Columbia where officials have banded together to ask the government to deny any Medicare and Medicaid money to homes and facilities that require arbitration clauses be signed for admittance. If this does happen, it should help to protect the rights of the thousands of individuals who go into nursing homes and care facilities each year. Although this one change can’t keep residents completely safe, it should prevent nursing homes from getting away with the most egregious offenses without serious consequences. Hopefully, at least it will give families like the Barrows some recourse in a tragic situation without requiring years of legal battles to get there.
If you suspect nursing home abuse, you should contact a nursing home abuse attorney who can investigate and determine if your family could receive compensation for damages. Protect your loved ones today.
