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Visit: Nursing Homes, in Bid to Cut Costs, Prod Patients to Forgo Lawsuits [USA]
Author:
Nathan Koppel, Wall Street Journal
Dated:
11 Apr 2008
Nursing-home patients and their families are increasingly giving up their right to sue over disputes about care, including those involving deaths, as the homes write binding arbitration into their standard contracts... [An] arbitrator found [a nursing home in Kosciusko, Miss.] was negligent both in allowing Ms. Hight to become dehydrated and failing to get her to an emergency room [shortly before she died]. But he awarded the family only $90,000, saying an underlying condition could have caused the death... Studies have suggested about a third of [all] businesses are requiring arbitration for consumer disputes, and about one-fifth of employers are requiring it for complaints by employees... Critics say the binding agreements are determining the outcome of high-stakes cases of vulnerable patients that should instead be handled by the courts. Too often, they say, people don't understand whether the clauses are mandatory, or that they are signing away their rights to sue... The biggest arbitration provider, the American Arbitration Association, frowns on agreements requiring arbitration in disputes over nursing-home care and generally refuses such cases... The nursing-home industry says arbitration is relatively quick and cheap -- for the elderly plaintiffs as well as the defendants -- and lets homes concentrate their staff and budgets on caring for patients, not litigation... The industry was alarmed in the late 1990s by a rash of huge jury awards... Courts in various states struck some [contractual arbitration provisions] down -- on the grounds that the pacts were signed under duress or too unfavorable to plaintiffs, or for problems such as not adequately explaining the rights patients were giving up. But other state courts have upheld the agreements even when entered into by illiterate or infirm patients. In Ohio last year, a court upheld one signed by a woman who had entered a home from a hospital and was suffering bouts of confusion. The court said the agreement was fair, but called the nursing home's use of it "troubling" during "an extremely stressful time for elderly persons of diminished health."... Robert Lancaster of St. Petersburg, Fla., who formerly defended nursing homes and is now a full-time mediator and arbitrator, commends arbitration as quicker, cheaper, and more rational than jury trials. But he says nursing homes also like it because...arbitrators like himself tend to be "seasoned attorneys" who "hold down runaway results." [refers to National HealthCare, Hillview Nursing & Rehabilitation, Skilled Healthcare]
