Is it possible to seek damages for pain and suffering even though an arbitration agreement has been signed? - AgingCare.com

Is it possible to seek damages for pain and suffering even though an arbitration agreement has been signed?

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When my mom entered rehab one of the forms I had to sign as her POA was an arbitration agreement. At the time it seemed to make sense, avoiding legal expenses of a trial,etc. if a disagreement arises. She was only going to heal a slightly fractured femur, which didn't seem high risk (my ignorance). But now, after an incident occurred (she swallowed her partial denture and it wasn't diagnosed for over 2 days, causing her considerable discomfort/inability to swallow) I can't forget the incident. Mostly it was the lack of sincere interest on the part of the staff to find the denture - to them, it was probably in the trash or laundry..even days afterward. They were minimizing her discomfort, chalking it up to her being 92 and having swallowing issues is to be expected.
Long story short, the rehab finally had an x-ray taken, and the denture was found in her esophagus. They called 911 and she was taken to the local ER, where she experienced a traumatic removal (due to metal hooks on either end).
She also developed pneumonia (either from aspirating fluids before removal at rehab or during the removal).
She spent a week in hospital. During that time, I was concerned about the quality of her life after this incident, and the pain and suffering she endured would affect her mind and body forever. She had mild dementia going into this, and I could see it getting a stronger hold the more she endured.
Luckily, she did get well enough to be discharged, but my plan to take her home was not realistic. She required more professional care than I could ever give her.
She is now in a much better rehab facility, even though my trust has been damaged, I can see her getting better physically week by week, but her dementia continues to get worse. The staff advises me to keep her there long term, but it hasn't been decided yet.
Maybe it might be better if I forget the whole incident, and just focus on today and the progress mom has made to this date. Maybe not enough time has gone by (it happened early July). The irony is that Mom doesn't remember her pain and suffering...it's mainly me as her daughter that won't forget the insult and lack of genuine concern given her well-being.

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Thanks Churchmouse - no I haven't gotten the actual denture examined for design flaws. But you have a point that is worth exploring. But, actually, no denture should be left in the mouth overnight, irregardless of flaws. And especially with a dementia patient.
The rehab head nurse on duty responsible for my mom that weekend did say to me, right after they read the x-ray, that he was super busy during that time and couldn't devote enough time and energy to find the "missing" denture. He did sound regretful, but barely.
I haven't spoken with anyone else from the rehab since then. A week after Mom was admitted to the ER, I went back and removed her belongings out of the facility until I found another place.
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My mother had a partial denture. Removed from her mouth, it did indeed look like an instrument of mediaeval torture, full of wires and hooks. But correctly placed - which was not all that difficult to do, once you got the hang of it - it stayed put no matter what.

How long had your mother had this thing? Are you satisfied that it was, actually, correctly made and fitted by her dentist?

I am the last person on earth to say Go To Law. It is always stressful, almost always counterproductive, and uncertain of outcome at best. And I wouldn't recommend it now either. But reading what your mother went through I feel indignant, and it isn't even my business.

What kind of explanation or investigation and report have you had from the rehab facility?
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Much appreciated comments and advice!!!
A friend of mine whose mother experienced a negligence situation said not to pursue any action - it seems that, according to our legal system, elderly patients are at the end of their productive life - and don't have as much to lose as younger patients. Unbelievable that the value of a person's life is measured by their ability to produce!!
Anyway, her the partial is in a container on my kitchen counter, not to be used again. Maybe I should take issue with the dentist for making such a dangerous looking partial?? Just kidding...I am tired.
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Forget the incident. It has little or nothing to do with the progressing dementia. Focus on finding joy in little things and reminiscing together. If she still has a partial, do not let her wear it or history will repeat itself.
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Generally, arbitration clauses preclude any subsequent litigation, but you'll need to carefully read those clauses in the agreement you signed on admission. From the arbitration clauses I've read, the right to sue is foreclosed by the arb clauses.

Whether or not you could initiate arbitration for pain and suffering is another issue, but see the comments below on how this might affect your mother.

Even if you could sue, there are other issues:

1. Whether any medical malpractice attorney would take the case, with one of the issues being whether this was legitimately malpractice sufficient enough to justify monetary damages for pain and suffering. I'm not saying it's not - in fact I would be livid, but I would take other action, as described below.

Med/mal attorneys know the types of cases that can be litigated succdessfully and won't take cases that don't have a good chance of either being settled or successfully litigated.

2. Your mother's age. Actuarial tables come into play with pain and suffering issues, even though this isn't a specific age related issue.

3. An important factor is that your mother doesn't remember the suffering she endured. An aggressive defense attorney could insist on calling her as a witness, and if she doesn't remember, the only documentation would be (a) your observations and (b) the facility's charts, which a med/mal attorney would order as part of the pre-litigation workup.

I can't even begin to imagine how stressful this would be for your mother.


Personally, I wouldn't try to sue, but I most certainly would take other action:

1. If this is a multi-facility corporation, research your state's corporation and your county's assumed name records to determine who owns the facility and who the officers are. Write a complaint to them; sent by certified mail. Sometimes contacting the execs can get some action.

2. Find out either from Area Agency on Aging or researching online whether there are ombudsperson agencies with jurisdiction over this facility - it might depend on area if the agencies are by county. Contact the ombudsperson agencies.

3. Research online the categories of issues Medicare addresses in its reviews of facilities; figure out a category that would include the incident, and file a complaint with Medicare. You might not get any action right away, but keep on them to investigate the issue.

4. Keep in mind that allegations of pain and suffering aren't going to be as much of a concern as the facility's (public image) and the bottom line - the financial issues and whether this would affect potential patients.
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