Nursing home patient rights erode; Families sign away rights to sue

[Posted by alaurie_97@yahoo.com]

Nursing home patient rights erode; Families sign away rights to sue
By The Associated Press




WASHINGTON - William Kurth fractured his left hip and leg and
contracted numerous pressure ulcers during his final months of life in
a Wisconsin nursing home. When his family attempted to sue for
negligence, a judge dismissed the case because Kurth's wife had
agreed, as part of her husband's admission, to have all complaints go
through an arbitrator.

Such agreements are becoming common as nursing homes look to avoid
costly civil lawsuits. However, federal lawmakers, urged on by
consumer advocacy groups and the trial lawyers lobby, are concerned
that families are signing away their ability to hold the homes
accountable for poor care.

A Senate committee investigating the growing use of binding
arbitration by nursing homes says more than 100 lawsuits have been
filed in the past five years challenging such agreements. Lawmakers in
both chambers have filed bills that would make the arbitration
agreements unenforceable.

Arbitrators take into account federal, state and county laws when
resolving legal disputes. Often, the parties are free to negotiate
some of the ground rules for their case. The process has the advantage
of being faster and less expensive for both parties. It also is
confidential.

However, families aren't even thinking about the possibility that they
might want to go to court when they admit their loved ones to nursing
homes.

Kurth's wife, Elaine, was under extreme duress and on medication when
she signed the papers that allowed her husband, a stroke victim, to
stay at the nursing home, said Jason Studinski, the family's attorney.

"It was one of the most stressful days of her life," Studinski said.
"She would have never signed away her right to a trial by jury if she
knew what she was doing."

Members of the Kurth family, who will appear before Congress today,
say their father, a World War II veteran, died at age 84 from
infections that occurred because excrement and urine were not cleansed
from his bedsores for days at a time. David Kurth of Burlington, Wis.,
says arbitration has become a shield for large corporations to hide
behind and decrease the quality of care.

"It is economically more profitable to let people like my father
suffer than to provide proper care," said Kurth in written testimony
provided to the Associated Press. "And now that our family is trying
to hold the nursing home corporation accountable for its actions,
Kindredcare is trying to bury our case by forcing us into a mandatory,
secret, and binding arbitration process that they chose."

Kindred Healthcare, based in Louisville, Ky., said it would not
comment specifically on the Kurth case. But it noted a judge's
decision that found the arbitration agreement was optional and not a
condition for admission.

"The Kurth family has been represented by counsel throughout this
proceeding and may pursue their claim under the provisions of
Kindred's Alternative Dispute Resolution program should they choose to
do so," the company said via e-mail. "We look forward to a prompt and
mutually acceptable resolution of the case."

The company said the arbitration program was designed to achieve
several goals, including prompt resolution of legal disputes and lower
costs to both residents and their families.

Lawmakers don't want to preclude binding arbitration as an option,
said Sen. Herb Kohl, D-Wis., and chairman of the Senate Aging
Committee. But the decision has to be made by both parties after a
dispute occurs.

"Many incoming residents lack the capacity to make even simple
decisions, much less judge the legal significance of an arbitration
agreement," Kohl said. "Most are unaware that they are signing away
their right to go to court."

The nursing home industry emphasizes that arbitration is voluntarily
agreed to and not a condition for admission. Also, nursing homes say,
the process is typically quicker than a court case, so agreements can
be reached while the patient can still take advantage of compensation.

Bruce Yarwood, president of the American Health Care Association, said
lawsuits were driving nursing homes out of some states in the late
1990s and early 2000s, particularly Florida. He also said that jury
trials can be stacked against the industry because people are inclined
to want someone to pay if a mom or grandmother got hurt, even if the
nursing home isn't responsible for the injury.

"What we find is that when you get into a court structure, it's not
necessarily an unbiased structure," Yarwood said. "What we're looking
at is something that's a lot more fair."

Groups including AARP and the Alzheimer's Association support
legislation, sponsored by Sen. Mel Martinez, R-Fla., that would make
arbitration agreements for nursing home patients unenforceable.

Stephen Ware, a professor of law at Kansas University, urged lawmakers
in his written testimony to refrain from banning arbitration for
nursing homes. He said lower legal expenses can increase access to
justice, especially in smaller cases where it can be difficult to
attract a lawyer. Also, lower legal expenses can benefit others to the
extent that a nursing home's costs are ultimately paid for by
residents and their families, or by taxpayers.

In some cases, the Federal Arbitration Act allows courts to invalidate
unconscionable arbitration agreements, Ware notes.

"And this is not just a theoretical protection," he said. "Each year,
there are many cases in which courts hold particular arbitration
agreements unconscionable. Among these are cases involving nursing
homes."