How Nursing Homes Can Prevent You From Suing

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If your elderly loved one dies while they are staying in a nursing home, can you sue the home for wrongful death?

Maybe, maybe not—it all depends on what you signed when they were first admitted.

A decision recently handed down by the Supreme Court has reinforced the ruling that nursing homes can include special passages—called "binding arbitration clauses"—in their contracts with residents to limit their chances of being taken to court.

Banned from the courtroom

Binding arbitration clauses are fixtures in contracts of all kinds, and serve to prevent the person who is signing the document from suing the contractor in a court of law.

Instead of being able to initiate a lawsuit, a person who signs a binding arbitration agreement must allow the conflict to be disputed and resolved through arbitration—a process where arguments are heard and judgment passed by specially trained and licensed individuals, called arbitrators.

Sarah Polinsky, J.D., an expert in the fields of elder law and estate planning, says that binding arbitration clauses are generally included in nursing home contracts to help make the conflict resolution process faster and cheaper.

But, in the case of nursing home disputes, the rapid and less-costly nature of arbitration usually favors corporations—not caregivers.

What you're giving up

Consenting to have future disputes with your elderly loved one's nursing home decided by arbitration means that a caregiver is forfeiting some of their constitutional rights.

There are two main differences between arbitration and litigation, according to Polinsky. With arbitration, there will be no:

  1. Public record of the dispute
  2. Trial, and no jury of peers to hear arguments and decide on an issue

And, unlike other types of arbitration, binding arbitration judgments cannot be appealed in court.

Even if a caregiver suspects that something the nursing home did (or didn't do) resulted in their loved one's injury, or death, they won't be able to sue the home for it.

Read carefully, then sign

When you're trying to get an ailing loved one into a nursing home, deciphering complicated legal diction isn't likely to be topping your to-do list.

"There's a fear, and the knee-jerk reaction is to sign whatever you're given to get an elderly loved one placed as soon as possible," Polinsky says.

But, even in times of extreme stress, a caregiver needs to pay attention to what they are signing.

That's why Polinsky recommends taking any legal documents home, where they can be reviewed in a calmer setting, before you sign on the dotted line.

Two critical pieces of advice for caregivers:

  1. Make sure you aren't personally binding yourself to any financial responsibility. Sometimes, nursing homes may try to get a caregiver to become a "responsible party." In most cases this means that the caregiver will be responsible for their loved one's nursing home expenses. Caregivers should avoid signing these kinds of agreements as federal law prevents nursing homes from requiring such commitments.
  2. If there's something in the contract that you don't understand, make note of it and ask the nursing home to explain it to you. Or contact an elder law attorney before you sign.

And remember—even when you feel pressured by time, finances, or nursing home staff members—you always have options.

If you don't feel comfortable with the document you're being asked to sign, Polinsky says, "A caregiver needs to have the wherewithal, even during that stressful time, to say that they will not sign the contract."

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8 Comments

Am I understanding this info correctly? Reading between the lines, if there is no public record of disputes, then when a caregiver is "shopping" for a facility, the caregiver would likely be horrendously mislead into thinking said facility had a sparkling clean record.
This article was a good read. I had my father in a NH in NJ, started as Medicare for 1st and most of the 2nd month. He was then Medicaid pending. After not being shown any prices in writing or signing any admission paperwork in the beginning, when he became Medicaid pending, they asked for more than my father's monthly income. They said this was payment for the remainder of the 2nd month of Medicare (only @ 2 wks.). After complaining and thinking this was too much for them to collect, they tried to make me sign a letter saying I will be responsible to pay. I refused to sign anything, so they told us my father will be discharged. I agreed to take him out. They then asked me if I was willing to work something out. They came up with a figure for us to pay monthly out of his bank account. I still never signed anything, but continued to keep my father there, and paid them (in advance every month) the amount they gave. Now, after receiving approval for Medicaid, the NH found out the figure which should be made available to them. They are now trying to bill me @ $20,000 for retroactive payment (saying I am responsible) and they will "go after" me for that money. I feel they can't do this since they gave me this figure to pay, and I made the payments promptly. I never signed anything, and the Administrator is screaming, harassing and threatening me, and even made it very difficult for us to get admitted to another NH, even though they said he was "discharged". Having had many complaints about them from the beginning, (one time a nurse threatened to "take me out into the parking lot" after I spoke up to her for yelling at my father), I feel as though this nursing home is not deserving of any of this money, they made our lives miserable. I finally just got my father out of there, and have a very bad feeling about how they will try to "go after" me. I don't trust them, and feel they will try to jeopardize our Medicaid renewals somehow. I need to get details of what is needed in NJ to renew after six months, what they ask for, and what they will be looking at. Please comment. Thanks.
I"m uncertain of this ...I did research every NH I've placed my mom in during the last 6 years (5 of them). They ALL had high ratings and customer or consumer reviews that I read. I placed her and at the beginning..all was fine. Then, the neglect set in and I'd have to move mom back in with me until she became hateful and SO argumentative about every little thing that I just could not take it anymore for my own sanity. I have PTSD and Panic Disorder w/agoraphobia. I really can't find ANY "good" nursing homes. If you notice while you're researching NH, one day their "rating" will be good. If you look again a few weeks later, it will not be so good. It's a never-ending battle..I can't find ONE good one. It's discouraging, frustrating and heart-breaking. Good luck to you.