Nursing Home Neglect Lawsuit
Complaints of negligence and neglect at long-term care facilities are nothing new. However, with the growth of nursing homes into a mega-business generating many, many billions of dollars annually in revenue, unscrupulous operators motivated to grow their empires while cutting costs have increased the need of individuals to be vigilant in defending their rights and the rights of loved ones against those who would place profit above quality of care.
Unfortunately, as the wealth and size of the nursing home industry has grown, so has its political influence, and plaintiffs seeking to hold owner-operators accountable oftentimes face opposition not only from the companies themselves but also from the very politicians whose constituents elect them to defend the rights of ordinary citizens against powerful interests. And even when government does seek to hold accountable nursing home operators providing substandard care, there is mounting evidence that the penalties and punishments in place are not sufficient to properly motivate change. Instead, many nursing home operators seem to be motivated to do only the bare minimum that will keep them from being stripped of their precious Medicare and Medicaid dollars.
The Inadequacy of Government Oversight
In recent years, independent observers have documented a growing number of examples illustrating just how watered-down and toothless the present regulatory system of government oversight is and just how inept it has been in motivating offenders to change course. In a July 2017 report, The New York Times drew attention to the case of a nursing home located in Bakersfield, California, which the California Department of Public Health (CDPH) had designated a “special focus facility”. This designation meant that the nursing home, known as Parkview, had to resolve its problems or face being stripped of its government funding, the kiss of death for most institutions.
After 15 months of close oversight, CDPH deemed Parkview’s issues sufficiently resolved and removed it’s “special focus facility” designation. However, records show that over the approximately 3 years following the lifting of the state’s enhanced scrutiny, Parkview was hit with at least 10 fines totaling over $120,000 for various violations. The violations included a failure to provide a nonslip pad for the wheelchair of an elderly resident—despite promises to do so—resulting in multiple falls for woman, one of which caused a broken hip.
Disturbingly, the data shows Parkview is not an isolated incident but part of a broader trend. According to the New York Times report, “Of 528 nursing homes that graduated from special focus status before 2014 and are still operating [as of the July 2017 report], slightly more than half—52 percent—have since harmed patients or put patients in serious jeopardy within the past three years.” The failures cited included the distributing of incorrect medications, not providing adequate protection against abuse by other residents and/or staff, and not disclosing resident injuries or other health concerns to family members. (Yet another reason to maintain a close relationship with nursing home staff and to visit often!) While this doesn’t mean that it is impossible for a nursing home with a dubious past to change its ways, it does mean consumers should be highly skeptical of any institution with a track record of past violations.
Nursing Homes and Alternative Dispute Resolution (ADR) Agreements
A great many industries have discovered a fondness of late for alternative dispute resolution (ADR) agreements as a means of controlling costs associated with legal liability, and the nursing home business is no exception. Large companies favor ADR agreements because arbitration tends to be cheaper, receive less publicity, and result in smaller payouts to plaintiffs than trials in state or federal court. Often, these agreements are voluntary but are misleadingly included among thick packets of mandatory admissions documents requiring scores of initials and signatures, and sometimes individuals signing them do not understand that they are free not to sign. Further, because a large number of nursing home residents have legally handed over decision-making responsibilities to another person, a resident may end up signing over his or her right to a jury trial without even knowing it. (For example, see the Georgia appellate court case from “TheLawFirm.com Sidebar: Nursing Homes and Alternative Dispute Resolution (ADR) Agreements”.)
Not only do large companies often succeed in getting customers to sign off on arbitration agreements that may not be in the consumer’s best interests, sometimes industries manage to lobby politicians so effectively that they get arbitration requirements instituted as a matter of law. For example, California’s Medical Injury Compensation Reform Act makes arbitration mandatory for many plaintiffs suing under the statute. (For example, see the California appellate court case from “TheLawFirm.com Sidebar: Nursing Homes and Alternative Dispute Resolution (ADR) Agreements”, below.)
At the federal level, the Trump administration took steps in August 2017 to undo an Obama-era rule that would have made it easier for residents to sue nursing homes for injuries caused by neglect, abuse, or substandard care by making it illegal for nursing homes to make an ADR agreement mandatory for admission. According to The New York Times, the Obama administration justified the rule on the basis that it is “almost impossible for residents or their decision-makers to give fully informed and voluntary consent to arbitration before a dispute has arisen.”
However, Trump administration officials disagreed, citing an emphasis on controlling the costs imposed upon nursing home operators by plaintiffs suing for neglect, negligence, and harms caused thereby. The ban on mandatory ADR agreements, according to Trump administration officials, imposed “unnecessary and excessive costs on providers.” While the nursing home industry—which doubtless lobbied hard for the rule change—hailed the move as a triumph, the announcement was largely decried elsewhere, with at least 16 state attorneys general voicing strong opposition in a letter to the Centers for Medicare and Medicaid Services, who issued the proposal.
TheLawFirm.com Sidebar: Nursing Homes and Alternative Dispute Resolution (ADR) Agreements
Despite the growing prevalence of alternative dispute resolution (ADR) agreements in the nursing home industry, as TheLawFirm.com readers know, plaintiffs challenging these arbitration agreements have been gaining increased traction in court. To cite two recent examples previously reported on by TheLawFirm.com:
• On February 26, 2018, a California court of appeals ruled that a son bringing a claim against nursing home operator Southern California Specialty Care was not bound by the arbitration agreement he signed on behalf of his deceased father and was free to proceed with his order. The appellate court further found that the arbitration provisions of California’s Medical Injury Compensation Reform Act did not apply because the plaintiff had sued under a different statute. (See TheLawFirm.com article)
• In a February 23, 2018 decision, a Georgia court of appeals ruled that a nursing home resident was not bound by a voluntary arbitration agreement that had been signed by his authorized healthcare representative without the resident’s knowledge, with the court deciding in part that authorization to make healthcare decisions did not extend to entering into binding ADR agreements. The case is also an important reminder that while nursing home patients frequently have lawsuits brought on their behalf by authorized loved ones, they also have the ability to bring lawsuits themselves where they have capacity. (See TheLawFirm.com article)
Make sure to check back in regularly at TheLawFirm.com for the latest updates on nursing home litigation. We hope it never happens, but should you or a loved one ever fall victim to a nursing home offering substandard care, contact our team of experienced attorneys for a free consultation. Don’t delay, the law places strict deadlines on your ability to file a claim. Contact us today!