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Blocked Ban on Binding Arbitration Still Giving Hope to Those Fighting Nursing Homes

Late last year, a Mississippi judge voted to block a ban on arbitration clauses in nursing home residency agreements. The ban, introduced by the Centers for Medicare & Medicaid Services (CMS), was intended to preserve the right to a jury trial and to encourage better care and oversight by nursing home staff. Despite the ban, victims and loved ones of those who have faced abuse, neglect, and even death are clinging to the very mention of CMS’ rule intended to ban binding arbitration clauses in hopes that it will be reinstated and breathe life into their legal battle against nursing homes.

A Daughter’s Fight for Justice

In Minneapolis, the daughter of an 89 year old assisted living facility resident who died after hernia complications in 2014 is suing the nursing home, Lighthouse of Columbia Heights, for failing to respond to obvious signs of a hernia in her father. Doctors had ordered staff to notify them if Mr. Seeger, the decedent, showed any signs of a hernia, given that he had experienced them in the past. After the staff had ignored obvious symptoms, his daughter went to visit her father, only to discover him vomiting and screaming about pain in his groin area. She called 911 and had her father transported to a hospital where he died shortly after admission. Seeger’s daughter faced a hurdle when attempting to sue Lighthouse of Columbia Heights: the family had waived their right to a jury trial by signing a 36 page residency agreement in which a binding arbitration clause was embedded. The daughter said that she asked for time to look over the agreement with an attorney but that the facility pressured her into thinking the apartment would be gone by the time she had done so. The attorney hired by the family is arguing that they signed the contract under duress, which would make the contract legally void. Lighthouse of Columbia Heights is fighting back by saying that they never pressured the family. While contracts can be tough to void, the lawsuit against the facility is being buoyed by the recent ban on binding arbitration, even with it currently stalled by the courts. In addition to the Seeger Family, many others who have debated seeking legal assistance despite signing an arbitration agreement are being filled with hope that justice might be on the horizon.

Seventh Amendment Guarantees Right to Jury Trial
The Seventh Amendment to the U.S. Constitution explicitly declares that all citizens are afforded the right to a trial by jury. ‘In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.’ How is it, then, that nursing homes and assisted living facilities or any other corporation or entity is able to take away a constitutional right? The argument is one of the biggest topics in law today. With CMS attempting to implement the ban on arbitration clauses, we are one step closer to preserving the Constitution. Even with the issue currently held up in the court system, it is giving hope to victims and their loved ones that justice will reign and accountability will be preserved.

Arbitration Is a Veil for Poor Care
Angela Menk, the daughter of another Minnesota nursing home resident who fell victim to neglect, has brought a wrongful death suit against Good Samaritan Society Nursing home in Winthrop. Ms. Menk agrees that arbitration lets people do bad things to good people and affords them a cover for misconduct. Ms. Menk said it best: “Arbitration would sweep my mother’s death under the rug, so no one would ever find out about it. I’m not going to let that happen.” Arbitration allows a nursing home to force victims and their loved ones into agreements that are often not equitable while also allowing the facility to maintain a reputation seemingly free of legal action. Where is the consideration for those who have suffered? In all other cases, justice is determined by a jury of our peers. Should the elderly not be afforded that same right?

 

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