In 2009, Elizabeth Barrow was killed in a South Dartmouth, Massachusetts nursing home after being suffocated with a plastic bag. Her roommate was charged with the crime. Workers at the nursing home had noted the woman was "at risk to harm herself or others" but nothing had been done to prevent her from harming Mrs. Barrow. When Mrs. Barrow's son sought to sue the nursing home from wrongful death, the nursing home used an argument that has become very common in nursing home abuse cases - the matter was subject to arbitration pursuant to the contract signed with the nursing home.
Arbitration in Nursing Home Abuse Cases
After examining 25,000 arbitration records, The New York Times found hundreds of cases of nursing home abuse between 2010 and 2014 that had been forced into arbitration. These elder abuse cases never went before a judge or jury to decide if the nursing home was at fault. Judges have upheld nursing home arguments that the arbitration clause in the contract was valid regardless of whether the person signing the contract understood what they were signing. In many cases, the clauses are buried in lengthy contracts that are difficult to understand. Many elderly patients have no idea they are giving up their legal right to a trial to settle disputes.
Recent Court Decision May Change Things For The Better
In Mrs. Barrow's case, a recent decision in favor of her son may turn the tide of this awful trend. A judge has accepted Mr. Barrow's argument that he signed the contract on behalf of his mother. While Mrs. Barrow had appointed her son as her health care proxy, attorneys argued that this did not give Mr. Barrow the legal right to waive his mother's right to a trial and bind her to arbitration to settle disputes. A health care proxy only gave Mr. Barrow the legal right to make "medical" decisions for his mother. The judge agreed. The case should be headed to trial.
Appeals courts across the country are beginning to accept this argument so that families and victims of elder abuse can sue the nursing home. Unfortunately, this is not the case in all elder abuse lawsuits. Many judges are still upholding these terrible arbitration clauses as valid even when the person did not (and in some cases could not) understand what he or she was signing. Family members should review nursing home contracts very carefully before accepting the terms. If the contract is confusing, consulting an elder abuse attorney may be necessary to protect your loved one.
Contact a Harrisburg Elder Abuse Attorney
If your loved one has been injured in a nursing home, contact the elder abuse attorneys of Handler, Henning & Rosenberg LLC to schedule a free consultation. Our professional legal team will aggressively fight to hold the nursing home accountable for your loved one's injuries. You only have a limited time to file a nursing home abuse lawsuit. Contact our office as soon as possible to protect your right to sue the nursing home that injured your loved one.