Nursing home abuse is a terrible problem in Alabama. This year, among many reports of abuse in Alabama, there was a nurse who gave a patient the wrong medication, a nursing home aide who blinded an 86-year-old by hitting her in the face, a nursing home which allowed an employee to keep working after being accused of sexual assaulting residents, and a nursing home employee who tried to smother a resident with a pillow.
When abuse occurs, it is often unreported. Even those instances where abuse is reported do not always result in criminal charges. The only recourse available for many seniors and their families in abuse cases is to pursue a civil claim.
Unfortunately, some nursing homes were even taking this option away from seniors. The federal government, however, has stepped in and made it easier for nursing home patients to sue for nursing home abuse and neglect.
Nursing homes throughout the country had moved to restrict the rights of residents to sue by including arbitration clauses in nursing home admissions paperwork. Often, residents or families signed without reading, or without really understanding the admissions paperwork or the arbitration clause in particular. After all, if a senior needs nursing care because of a physical or a mental illness, reading endless pages of legal fine print may not be easy under these circumstances.
When arbitration clauses were signed, seniors and their families had to pursue abuse and neglect cases in arbitration and couldn’t sue. The arbitration process is very different from a typical civil case. In most cases, those arbitrating a dispute have to pay part of the fees of the arbitrator, which can make it too expensive to pursue a claim.
The arbitrator may also be less inclined than a sympathetic jury to award substantial damages to abused plaintiffs. Washington Post reported on an analysis of 1,449 closed claims of nursing home abuse between 2003 and 2011 and found no money was awarded in 30 percent of cases with an arbitration agreement, compared to 19 percent of cases without an arbitration agreement. Further, 12 percent of claims resulted in payments of compensation in excess of $250,000 when no arbitration agreement was in place, compared with just 8.5 percent of claims when there was an arbitration agreement.
Seniors shouldn’t be deprived of the right to sue. Now, in most cases, they won’t be! According to the New York Times, the Health and Human Services Department (HHS) instituted a new ruling barring nursing homes which receive federal funds from requiring disputes be resolved in arbitration.
Since HHS controls more than $1 trillion in Medicaid and Medicare spending, the vast majority of nursing homes get federal funding and will be subject to this new rule. More than 1.5 million nursing home residents will now be protected from mandatory arbitration and will have the chance to resolve their claims in court if they believe a nursing home should be held accountable for damages.