Nursing Home Abuse

On Tuesday, June 8, the Florida Supreme Court heard Oral Arguments in a nursing home arbitration case, according to a Health News Florida report.

The nursing home industry increasingly prefers arbitration instead of lawsuits to settle difference. Skilled Florida nursing home abuse lawyers know that residents or their power-of-attorney are presented with the agreements upon admission. They mandate settling differences or lawsuits before a panel that will arbitrate the differences instead of going before a panel of jurors in a courtroom. Trial attorneys and consumer groups believe that the jury system should not be circumvented by this artificial arbitration alternative.

In the case before the court, Gayle Shotts challenged the arbitration clause of the nursing home, Winter Haven Inc., where he uncle lived and died. She filed a lawsuit saying the arbitration agreement was unconscionable and against public policy. She said she didn’t understand what she was signing.

Courts in Florida have treated arbitration clauses differently depending on where they are. In June 2008, the Second District Court of Appeal (2DCA) found that a nursing home arbitration agreement signed by the individual or their power-of-attorney was neither unconscionable nor against public policy. In the Shott case, the arbitration was to follow the AHLA/NHLA rules, which sets a higher standard of proof. The 2DCA severed the terms while the 4DCA declined to sever and the arbitration.

So when there is a difference at the lower court level, the highest court of the state must intervene.
The outcome of this case may determine how much limited liability a nursing home has when the resident signs an agreement. If you have been presented with an arbitration agreement, look at the capping of non-economic damages or pain and suffering, and preventing punitive damages or the awarding of attorney’s fees. All of that is designed to circumvent your rights to go to court under our U.S. Constitution. Decide if it is fair to decide the outcome of a case of negligence by signing away your loved one’s rights in advance of them entering the home. If most people understood what they were signing, they would simply refuse to do so. Stay tuned to this decision. The Shotts court docket is here.

94 Percent of Nursing Homes Have Problems. That is the concensus of a recent report from the Department of Health and Human Services.

94 percent of for-profit nursing homes were cited for deficiencies of care last year. Of that number about 17 percent had deficiencies that could cause actual harm or “Immediate jeopardy” to patients. About two-thirds of nursing homes are for-profit.

Problems cited include infected bedsores, medication errors, poor food, and abuse and neglect of patients.

So how do for-profit homes make their profit? Do they charge you more for expected quality care and then deliver less? The quality of a nursing home is entirely dependent on the ratio of nursing staff to patient. If you are shopping for a nursing home, that needs to be your number one question.

The inspector general’s report found 88 percent of non-profit homes were cited for deficiencies of care and 91 percent of government homes were cited. More than 37,000 complaints against nursing homes were received last year.

In addition, the Inspector General found some cases in which nursing homes billed Medicare and Medicaid for services that “were not provided, or were so wholly deficient that they amounted to no care at all.”

You can find out more about a nursing home in your area by checking with Medicare online and putting in your zip code and the distance you want to drive.

In Florida, the Agency for Health Care Administration has a Nursing Home Guide to find out what rating the state gives homes.

Cutting services to create profit can lead to unsupervised caregivers and has a direct impact on the quality of care your loved ones receive. When corporations cut corners people suffer. Call us at Farah and Farah for an evaluation of your claim. And check our Web site for more on elder neglect and nursing home abuse.

The nursing home industry has launched a campaign designed to fight a Senate vote on consumer protections for those living in nursing homes and assisted living facilities. The Fairness in Nursing Home Arbitration Act, sponsored by Sen. Mel Martinez (R-FL) and Herbert Kohl (D-WI) would make pre-dispute binding mandatory arbitration provisions that a person signs in a nursing home contract unenforceable.

Buried in the fine print of these contracts is wording that says if a dispute arises, the elderly and their families lose their right to take a deficient nursing home to court. That would even apply to cases of abuse or neglect. Litigation is frequently one way to force some nursing homes to comply with compassionate care. What nursing facilities want instead of a court date, is for you to take your complaint before a private and secretive forum.

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