Monday, March 08, 2010

Nursing home residents often sign away rights to sue

Nursing home residents often sign away rights to sue

Many seniors entering nursing homes in Massachusetts are unwittingly signing away their rights to sue the facilities in the event of neglect or bad medical care, and officials in Washington are seeking to ban what they see as a “hidden” practice.

The seniors are being urged to sign contracts that put disputes in the hands of arbitrators. Advocates say vulnerable elderly patients fail to realize they are giving up their rights to bring cases of slipshod treatment before a judge and jury.

“It gives the nursing home carte blanche to abuse these elderly people because they won’t have to answer to it” in court, said Marlene Owens of South Easton, who successfully challenged an arbitration agreement signed by her “delusional” elderly stepfather in 2003.

She is now suing his former nursing home over bad care.

The Boston Sunday Herald reported yesterday that nearly 40 percent of the state’s nursing homes performed significantly below average, according to annual inspections, and that numerous residents suffer abuse and neglect or receive shoddy care. The Bay State nursing home population is about 45,000.

With nursing homes here and nationwide pressing residents to sign the arbitration agreements - often tucked away in thick and complex admission packages - lawmakers including U.S. Rep. Barney Frank (D-Newton) are weighing federal action.

Family members and residents are emotional at admission time and overwhelmed by paperwork, said Janet Wells, director of public policy at the National Citizens’ Coalition for Nursing Home Reform. “They may not be aware the agreement is there. They may feel they don’t have a choice but to agree,” Wells said.

Studies show nursing home arbitration dramatically reduces payouts in cases where seniors have been wronged. The average nursing home claim amount in the United States shrank from $261,000 in 1998 to an estimated $116,000 in 2008, during a period when tort reform and arbitration increased, according to a 2009 Aon Corp. The average payment in arbitrated cases was $91,000, compared to $138,000 in nonarbitrated cases, about 35 percent less.

Frank, who supports federal legislation to ban the agreements in nursing homes, said they have no place in the elder-care facilities.“With older people you ought to be especially careful. This principle is a bad one,” said Frank. He said that though arbitration can be a good way to handle disputes, it should be a choice.
“You shouldn’t have to sign one in advance in these one-sided contracts,” he said.

Frank and U.S. Rep. William Delahunt (D-Quincy) are among 28 sponsors of the legislation, which was filed by California Rep. Linda Sanchez. It is pending in front of a House subcommitee.

The nursing home industry has mobilized against the bill.

Arlene Germain, president of Massachusetts Advocates for Nursing Home Reform, said the agreements capitalize on vulnerable seniors. “They should not lose the ability to hold nursing homes accountable in the event of abuse or neglect by signing away their constitutional right to have their cases heard by a judge and jury,” she said.

Take care to read the fine print, do research when choosing Nursing Home

Take care to read the fine print, do research

Quincy attorney Bernard J. Hamill, who represents victims of nursing home abuse, says family members placing loved ones in the homes should be mindful of their rights and do diligent research.

Read the fine print: Hamill said predispute arbitration agreements, which bar a resident from suing the nursing home, should not be a requirement for admission. He advises against signing such agreements without first talking to an attorney.

“You do not have to sign it. It’s negotiable,” Hamill said.

Stay a while: Hamill recommends eating a meal in the prospective nursing home, taking note of how many of the residents are dressed and up for meals and what activities are available, and talking to nursing assistants and staff.

Check the report card: Massachusetts nursing homes are inspected each year and a report card of the results are online at The overall information available online is limited.

The federal government runs the Five-Star rating Web site, which allows consumers to compare nursing homes to each other and see how they rate overall and on inspections, staffing and quality of care

Article by By Jessica Fargen
Monday, March 8, 2010
Boston Herald