National Push for More Stringent Elder Law Protections Turns Toward Changing Mandatory Arbitration Clauses in Nursing Home Abuse Cases
Written by Jeff Meyer on November 15, 2015
Every year, as many as ten percent (10%) of senior residents at nursing homes suffer elder abuse. Elder abuse in the broadest definition is the willful physical or emotional abuse either at the hand of nursing home employees or other residents. This would amount to over 300,000 annual cases of such abuse, most of which go unreported, should the peer-reviewed figures from American University studies and government statistic suffice. In short, there is a grossly underserved segment of the US population to date in elderly citizens, and in turn, further scrutiny and interest at the national level has slowly uncovered a problem of incredible proportions. Though just as potentially lethal as active physical assault or other forms of abuse, neglect entails the refusal of responsible caregivers to provide the requisite care that a nursing home patient may need.
Neglect Leads to the Death of a Minnesota Husband by Way of Dehydration
Unfortunately, one type of elder abuse that is becoming increasingly common in nursing homes and rehabilitation centers despite ongoing national awareness campaigns on elder abuse, is neglect, or the failure of employees to provide needed care to patients.
Dean Cole in Minnesota was one such case. Just two weeks after his wife, Virginia, placed him in a nursing home for the elderly, he had lost 20 pounds and gone into a coma. When he was rushed to the emergency room, doctors quickly realized that their patient was so dehydrated, he could not have survived much longer without acute medical intervention. In fact, risks related to Cole’s inability to hydrate properly himself was one of the reasons behind his wife’s decision to place her husband into the elder care facility.
As with many nursing home residents, Dean Cole suffered from dementia, a chronic condition among senior citizens whereby forgetfulness, confusion, frustration, and inability to care for oneself impede survivability for an individual on their own accord. In Cole’s case, it was prior potential dehydration issues that led Mrs. Cole to elect to find better care for her husband, in her mind. Over five million Americans suffer from dementia, and close to half of these have suffered some form of elder abuse. Most of these cases of abuse go unreported, either due to the victim’s inability to articulate what has happened to them, or because of fear of retaliation from the abuser.
Further, Mrs. Cole became suspicious as she had told nursing home officials specific information on her husband’s risks as they related to dehydration; hence, her surprise that his condition had deteriorated so quickly after he was placed in their care. While Cole survived that visit to the emergency room, he died just weeks later.
Claims Case for Wrongful Death De Facto Lost in Arbitration
When Virginia attempted to sue the nursing home for wrongful death, her attorney pointed out that she had signed a statement that she would not take them to court, but to arbitration. After legal bills and witnessing fees, her settlement was only $20,000. While these figures may seem relatively high to some, the costs of lost income, medical expenses during and after the dehydration incident, legal counsel fees, and costs for the burial of her husband, never mind the outstanding obligations owed to herself and the emotional damages from the loss of her husband. In short, the decision in arbitration was most likely a small; percentage of the potentially recoverable damages in civil litigation or potentially a jury trial.
Federal lawmakers are attempting to address this issue of the role of mandatory arbitration clauses and their permissibility in future claims cases in elder law, with the easiest proposed route to a resolution being federal legislation.