According to Time Magazine, in 2011, 84 year old Sister Irene Morisette, a Catholic nun, admitted herself to Chateau Vestavia, an assisted-living facility outside Birmingham, Alabama. After over 60 years of service to the Catholic Church, Sister Morisette wanted to live in a facility that could help her with daily tasks, as her knees were sore after countless hours of prayer. In the three year period from her admittance in 2011 until the night of June 23, 2014, Sister Morisette had begun showing signs of dementia and had her sister named as her legal guardian. It has not been revealed if Sister Morisette had dementia at the time she admitted herself into Chateau Vestavia, a finding that, in the eyes of the law, would be extremely significant given the horrifying incident that happened.
Upon admittance to the senior living facility, Irene Morisette signed a pre-dispute arbitration agreement, also known as a binding arbitration agreement, that was embedded in a lengthy admissions contract. The arbitration agreement prevented Sister Morisette, a woman who dedicated her life to God and the church, from suing when she was raped, presumably by a Chateau Vestavia staff member, on the night of June 23, 2014 at 87 years old. Irene Morisette believes her perpetrator was a staff member, as she had locked the door to her bedroom that night, just as she had every night of her adult life. Only someone with a key could have entered her room in the middle of the night without any forcible signs of entry.
Evidence Proves Ms. Morisette was Raped
It is unclear who Sister Morisette initially told of the rape, but police were immediately notified. Upon examining the crime scene, police found her pajama pants under her mattress, with blood stains near the rear area. Investigators also discovered two semen stains on her bedsheets. A sexual assault expert at the local hospital reported that Sister Morisette had wounds and abrasions consistent with rape. Sister Morisette, 5 foot 2 inches and 140 pounds at the time, told authorities that someone had entered her room, held her down against her will, and raped her. She did not call for help after the incident, as she was terrified that the assailant would be the person who responded to her distress call.
After investigators were unable to identify the perpetrator and file criminal charges, Irene Morisette’s sister attempted to sue Chateau Vestavia for failing to provide a safe environment for residents. She was told by the facility that because her sister had signed a pre-dispute arbitration agreement, her only recourse was to go through the arbitration process and not the courts via a traditional lawsuit.
Arbitration Agreements: A Federal Endorsement
There are several important things to know about arbitration agreements and nursing homes:
- Multiple arbitration experts told Time Magazine that they estimate 1 million residents of nursing homes and senior living facilities have signed an arbitration agreement.
- Senior legal advocates believe that 90% of large nursing home chains require arbitration agreements (where not otherwise forbidden by state law).
- The American Health Care Association (AHCA) has spent $26 million in the past 10 years lobbying the House and Senate, all to push the idea that arbitration agreements should not be banned from nursing home admission contracts.
- Arbitration agreements were set to be banned from admission contracts by the Obama Administration, but a federal judge in Mississippi blocked the ban from going into effect last November. The case was brought forth by none other than the American Health Care Association.
- This June, the Trump Administration proposed a rule that would allow nursing homes to use pre-dispute arbitration agreements, a move that many elder experts believe nursing homes will view as the government essentially encouraging them to include the clauses in their admissions contracts.
- Arbitration experts earn anywhere between $300-$600 an hour and elder experts believe that their decisions can be swayed by the lure of being hired again by the same or other nursing homes to arbitrate disputes. The more favorable a finding is for a nursing home, the more in demand an arbitrator becomes.
- Arbitration agreements have been found by countless studies to favor the non-injured party, with less awarded to the victim than in a trial by jury.
- Costs for arbitration must typically be paid by the family bringing the dispute. Nursing home abuse lawsuits traditionally do not require money out of the client’s pocket. Nursing home abuse and neglect attorneys typically are only paid a percentage if the attorney recovers money via settlement or verdict.
Arbitration Allows for Unlawful and Unethical Tactics by Nursing Homes
A major issue that prevented Irene Morisette’s rape investigation from ending in criminal charges is that the nursing home deleted all security footage from the night of the rape. According to the nursing home, cameras were not placed in the hallway near her room, so footage would not have been relevant. In a lawsuit, an attorney would immediately have requested that all evidence relating to the night of Sister Morisette’s rape be preserved. Any violation of this request would be punishable in court.
The nursing home also attempted to push the theory that Sister Morisette had strong sexual impulses and that the genital wounds discovered during her rape examination were self-induced. Under oath during depositions, employees who actually worked with Sister Morisette said they had never seen anything to indicate she could have harmed herself. Nursing home management and counsel also theorized that the semen found on her bedsheets was from the hands of housekeeping staff. Unfounded theories such as this are rarely, if ever, admissible in court.
Arbitration agreements also allow blatant violations and crimes to go unknown by fellow residents and the public at large. When a dispute is allowed to go through the civil justice system, it becomes a matter of public record.
No Award…Instead a Bill
Finally, Irene Morisette’s sister asked for $5 million in damages during arbitration. At Sister Morisette’s request, every penny was to be donated to the Catholic Church. Instead, the arbitrator chosen by Chateau Vestavia (now going by Morningside of Vestavia Hills) determined that the facility was not liable and did not owe Irene Morisette a dime. She was instead sent a $3,000 bill to cover the costs of arbitration. According to Sister Morisette, she had spent her life dedicating her heart and her body to God. For her to be robbed so violently of a vow she had made over 6 decades ago is a heartache she can hardly bear.
For all of us committed to preserving the rights of the elderly and fighting for fair treatment and justice, it is unbelievable to us that arbitration agreements are legal as a requirement for admission into most nursing homes. In a country that places such emphasis on the Constitution, how is it possible that businesses, especially a $275 billion industry such as nursing homes, be allowed to require American citizens to waive their 7th amendment right to a trial by jury? Adding further insult to injury is that these pre-dispute arbitration agreements are embedded in pages upon pages of rules and regulations, language that quickly becomes overwhelming when not under duress, much less when one is admitting themselves or a loved one into a nursing home.
The nursing home abuse and neglect attorneys of Levin & Perconti encourage you to avoid nursing homes that require arbitration agreements. While we know distance, cost, and many other factors are involved, if possible, please find a nursing home that will not automatically require you to put your loved ones needs second to their own by signing a pre-dispute arbitration agreement.
If you suspect abuse or neglect of a loved one at a nursing home, please let us help you. Our consultations are free and confidential. Please call us at 312-332-2872 or complete our online consultation request form.
Want to know more about arbitration agreements? Please see our related posts:
- AARP Supports Banning Pre-Dispute Arbitration Clauses in Nursing Home Contracts
- LA Times Declares Pushing Nursing Home Arbitration ‘Clearly Does Little to Promote Safety and Accountability’
- Lisa Madigan Joins 16 Other Attorneys General in Opposing Nursing Home Arbitration Agreements
- Arbitration Clauses Diminish Rights of All Ages & Genders, Not Just Elderly