Avoid Arbitration Clauses in Nursing Home Contracts

By Paul Gagliardi

Placing a loved one in a nursing home is a difficult decision. The admission process is stressful with numerous documents to sign. Little known to many is the arbitration provision inserted into paperwork at some nursing homes.

An increasing number of nursing home contracts contain arbitration clauses, a tactic nursing homes are using to limit their accountability in cases of neglect, abuse or wrongful death.

Arbitration clauses mean that rather than going to court to settle a dispute, you must go to arbitration to settle. This means that people are unknowingly signing their rights away to justice if a loved one is injured or dies in a nursing home due to neglect or other mistreatment.

As more people use nursing homes and care facilities, many families could be unaware of the consequences of signing a contract that contains an arbitration clause. Nursing homes usually choose the arbitrator whose decision is final and cannot be appealed. Justice demands that mandatory arbitration provisions be removed from nursing home contracts.

The ramifications of an arbitration agreement are eye-opening and saddening in the case of 84-year-old William Kurth of Racine County. He passed away as a result abuse and neglect while he was a resident at Mount Carmel Medical and Rehabilitation Center, owned by Kindred Healthcare Inc.

His wife, Elaine Kurth, could no longer care for her husband in their home so she and her family made the hard decision to admit him into a nursing home. The Kurths were unable to get into the nursing home in their community at first, but eventually an opening became available. Mrs. Kurth went to Mount Carmel to help with her husband’s admission into the nursing home, but her husband was not there as she had expected.

The admissions coordinator didn’t wait for Mr. Kurth to arrive and rushed Mrs. Kurth through over 50 pages of admissions documents. Mrs. Kurth wasn’t given the chance to read the many pages of text; instead the admissions coordinator used her own words to explain what the documents meant. At the end of the document was a mandatory binding arbitration agreement. The admissions coordinator described the arbitration agreement as necessary in order to admit Mr. Kurth into the nursing home.

During Mr. Kurth’s stay at Mount Carmel, he had hip surgery which made him nearly immobile. This condition put him at risk for pressure ulcers. Even with this knowledge, the nursing home didn’t change his care plan. As a result, Mr. Kurth lost substantial amounts of weight, developed 10-11 stage 4 pressure ulcers, which staff failed to prevent and treat. The pressure sores were so severe that they left bone and organs exposed.

During this time, the nursing home went from having a wound care team of multiple caregivers to a single wound care nurse, who was responsible for all of the wound care for 155 residents. The nurse failed to treat any of the pressure ulcers. Mr. Kurth suffered from untreated pressure ulcers, dehydration, and malnutrition. These factors directly led to his death.

After his death, Kindred officials offered to pay for half of his funeral and claimed they felt somewhat responsible for his death. When the family rejected the offer, Kindred offered to pay all of the funeral expenses, which the family again rejected. The family requested multiple copies of Mr. Kurth’s medical charts and all documents related to his care, but Kindred did not present a copy of the arbitration contract to the family until after they filed a claim against the nursing home corporation.

The Kurth family, represented by Jason Studinski, filed a claim in Racine County Circuit Court. Kindred moved to dismiss the lawsuit and force the family into binding mandatory arbitration. The judge ruled the case must be arbitrated under the terms that Kindred put in its arbitration agreement.

Mandatory arbitration in nursing home contracts is unfair to residents and their family. So make sure to read admission papers and contracts carefully before you sign them. If you or your family members come across an arbitration clause just say no. The nursing home cannot refuse admission or discharge a resident who doesn’t sign an arbitration agreement. Protect your rights and protect your family.

Every American citizen has a right to seek justice by a jury, yet that right is being undermined by the use of arbitration.

Paul Gagliardi is the President of the Wisconsin Association for Justice, the state’s largest statewide voluntary bar organization. WAJ is committed to a fair and effective justice system that ensures justice for all, not just the privileged few.

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