Closing the Courthouse Door on Nursing Home Residents

Courthouse 3

 

The Trump administration has drafted a binding arbitration rule that prevents nursing home residents from having their cases heard in a court of law. The Trump rule reverses Obama era policy forbidding nursing homes from doing this on the grounds that it preys on the elderly. His team was influenced by the death of 100-year-old Elizabeth Barrow.

In 2009, Mrs. Barrow (pictured above) was found murdered at her nursing home in South Dartmouth, Mass., strangled and suffocated, with a plastic shopping bag over her head. Her 97-year-old female roommate was charged with the homicide, but because of her dementia she was deemed unfit to stand trial and committed to a state hospital.

Her family didn’t have a problem with that: “It’s like charging a 2-year-old who happened to take a gun off a table and shoot a sibling,” her son told The New York Times. But he did want justice for his mother’s death because, among other things, he said the nursing home knew the roommate was dangerous. For example, file notes described her as being “at risk to harm herself or others.”

So he filed a civil suit on his mother’s behalf alleging wrongful death. But the court refused to hear the case because his mother’s contract with the nursing home contained a clause that forced any dispute into private arbitration; i.e., no judge or jury – the “judge” is some private entity, typically a law firm – and the proceedings are hidden from public scrutiny. So the case was referred to arbitration.

However, the notoriety of the case coupled with the industry wide practice of requiring vulnerable people to give up their right to sue if they want into a nursing home, resulted in the Obama administration enacting a rule forbidding the practice.

But that was then. This past June the Trump administration decided to make America arbitrate again on the basis that it’s simpler, fairer and faster for all parties concerned.

Fairer? The CDC says that about half of nursing home residents have Alzheimer’s disease or other dementia. Second, the arbitration agreement may be just one page in a voluminous contract of 30 to 40 pages. Thus, according to one federal court judge who blocked enforcement of an arbitration contract:

Most of the people who come to me have no idea they’ve even signed an arbitration agreement…. the practice of executing arbitration contracts during the nursing home admissions process raises valid concerns … since many residents and their relatives are ‘at wit’s end’ and prepared to sign anything to gain admission.

 

There’s an important infectious disease tie-in because nursing homes are a hotbed for infections, especially drug-resistant ones. For instance, according to James A. McKinnell, MD, an infectious disease specialist at the Harbor-UCLA Medical Center and the Los Angeles Biomedical Research Institute:

Current data suggests that here are nearly 3 million infections in nursing homes every year, resulting in 150,000 hospital admissions and 30,000 deaths.  As the US nursing home population is expected to increase from 3 to 5 million by 2030, we can expect to see a larger burden of these types of infection.

 

Mckinnell’s research also found that: (1) Almost half (47.5%) of the people in nursing homes are colonized with at least one drug-resistant bacterium (2) Nursing homes themselves are awash with superbugs: 88% of the rooms are contaminated with at least one, and (3) The big dog is Methicillin-resistant staphylococcus aureus (MRSA). They were found in almost 2/3 of the rooms (65.2%).

 

So what legal mechanism best protects our health: the age-old one of full access to a court of law, or the newer one of binding arbitration that’s forced on you – or you’re denied admission to the nursing home – at a vulnerable time in your life?

Elizabeth Barrow knows the answer. The arbitrator ruled against her and in favor of the nursing home. However, according to a report in the Times, only later did the Barrow attorneys learn something outrageous: the private firm running the hearing had previously handled more than 400 arbitrations – everyone of them for the very same law firm that represented the nursing home.

 

 

 

 

 

 

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