This change could have a profound and lasting positive impact for the estimated 70,000 Florida nursing home residents, who are often frail, vulnerable and targets for abuse and exploitation. Arbitration agreements are generally disfavored by plaintiff attorneys because they strip patients of the right to have disputes resolved in a court of law by a jury. Arbitration takes away certain rights that are guaranteed through the court process, such as the right to discovery (the sharing of information about what allegedly occurred). Outcomes of arbitration in nursing home abuse cases also tend to be decided more favorably toward the nursing home, with fewer and lesser judgments for the plaintiffs. Finally, the process is secretive and confidential, meaning potential future patients don’t have the benefit of knowing what really took place and residents and families don’t have the right speak freely about problems with abuse and neglect at a given facility.

It’s worth noting there is a resident bill of rights codified in Florida Statutes, specifically F.S. 429.28. This provision affords residents a litany of protections, including the right to a safe living environment free from abuse and neglect, treatment that is respectful and cognizant of one’s personal dignity and access to appropriate and adequate health care consistent with established and recognized standards in the community. However, Proposal 88 would commit these rights to the state constitution (making them more difficult to amend) and also taking mandatory arbitration agreements off the table.

These proposed changes were spurred in large part by the tragedy at a Hollywood Hills nursing home after Hurricane Irma, when a dozen residents died of heat-related illness when the facility lost power and allegedly failed to seek appropriate assistance from emergency authorities.

A spokeswoman for the Florida Health Care Association, a nursing home industry group, accused proponents of Proposal 88 of “capitalizing on a tragedy,” arguing there is nothing in the bill that would have changed what happened here in South Florida after last year’s monster storm. The spokeswoman further said this was an effort to expand nursing home lawsuits, not patient’s rights.

But here’s the reality: Allowing patients greater access to the court system is an integral part of their right to justice when they have suffered abuse, neglect or other maltreatment. Yes, it will likely increase the number of nursing home neglect lawsuits in South Florida, but that’s because that avenue has been so heavily restricted in recent years. Many patients and new families don’t fully understand what they are signing when they are handed an arbitration agreement amid a stack of admissions paperwork, but are informed if they don’t sign it, they will be turned away.

Florida has largely upheld the validity of nursing home arbitration agreements, except in cases where the contracts are in violation of public policy (skewed unconscionably in favor of the facility) or invalid due to a signature by a person not authorized to serve as power of attorney for the resident.

Protections proposed by this measure are increasingly important in an era wherein certain politicians are seeking to soften fines against the industry for violations of state and federal standards for care, in some cases even discouraging regulators from imposing any fine at all.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Do Florida nursing home patients need a bill of rights? Feb. 3, 2018, By Kate Santich, The Orlando Sentinel

More Blog Entries:

Injury Attorney Perspective: Why Florida’s No. 1 Rank as “Judicial Hellhole” is Biased, Untrue, Feb. 28, 2018, Broward Nursing Home Neglect Lawyer Blog

As part of an in-depth investigation into the problem, reporters discovered there were 16,000 complaints of sexual abuse in long-term care facilities (nursing homes and assisted living centers) since 2000. That was according to data from the U.S. Administration on Community Living. However, even those officials noted that number doesn’t reflect the true scope of the problem because it only includes cases that involved the respective state’s long-term care ombudsman.

When CNN queried state health departments and other agencies that regulate long-term care facilities in all 50 states, they first discovered not all could provide data on sexual abuse of residents. Of those that could, the responses varied significantly.more

For instance, in Illinois, there were reportedly nearly 400 allegations of sexual abuse of nursing home residents since 2013, with more than 200 involving a caregiver. Meanwhile, Hawaii reported that jut eight reports of sexual abuse of residents between 2011 and 2015 were substantiated. Of those, five involved a caregiver. Further breakdowns showed very few allegations are ever substantiated – not because they are necessarily untrue (false rape accusations are rare). However, there are host of inherent problems that include:

• Proving claims when victims are aging/ suffer dementia/ etc.
• Evidence is often destroyed;
• Facilities/ regulators too often conduct half-hearted investigations.

Reporters discovered the majority of state regulators have no idea how often sexual abuse in nursing homes happens because these offenses aren’t separately categorized in nursing home abuse investigation reports. The federal government doesn’t follow it specifically either, though some allegations are buried in other reports.

CNN investigators then delved into those reports, first requesting a special search by personnel at the Centers for Medicare and Medicaid Services, which tracks all alleged abuse as a single category. The results of that inquiry revealed nearly 230 nursing homes cited for failure to protect residents who were victims of sexual abuse in cases that were substantiated between 2010 and 2015. Of those, little more than half resulted in fines. Only 16 were denied further federal funding.

This analysis didn’t include assisted living facilities.

Then, CNN conducted its own analysis of reports from 2013 to 2016. Using sex-related keywords, reporters discovered more than 1,000 nursing homes were cited for either mishandling or failing to prevent cases of alleged sexual assault, sexual abuse and rape. Of those, about 100 nursing homes were cited multiple times for numerous offenses.

Given that national studies have shown time and again that most rape victims never report their attacks, these figures probably only tell us a small part of this story. Sexual abuse in nursing homes is clearly a serious problem – and one that isn’t getting as much attention as it deserves. That means residents are not getting the protection to which they have a right.

Approximately one-fourth of the alleged cases of sexual abuse were carried out by employees of the nursing home – aides, nurses and other staffers. A small percentage involved visitors to the facility, including family members. However, most cases involved residents abusing other residents. Nursing homes have a responsibility to protect and properly supervise residents, so facilities can still be liable for these instances.

Further, allegations of sexual abuse involving caregivers and workers tended to be far more serious and egregious.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

SICK, DYING AND RAPED IN AMERICA’S NURSING HOMES, February 22, 2017, By Blake Ellis and Melanie Hicken, CNN Investigations

More Blog Entries:

Arbitration Agreements in Medical Malpractice Agreements Against Public Policy, Feb. 27, 2017, Fort Lauderdale Nursing Home Abuse Lawyer Blog

The decedent’s son argues he did not have the legal authority to forfeit her right to remedy through the courts when he signed his name arbitration agreement stuffed into the thick stack of nursing home admissions paperwork.

He now says the roommate, a dementia sufferer who reportedly strangled his mother, had a history of problems and the facility should not have allowed her to live with another resident.

This issue of forced arbitration is a means by which nursing homes essentially toss away the keys to the courthouse. The contract they make new residents – or their representatives – sign contains a clause that states if there is a dispute regarding care – even one that results in serious injury or death – the resident agrees to resolve it before an arbitrator, rather than in court.

There are a number of problems with this approach, at least from the victims’/survivors’ perspective.

To start, these proceedings are not public. This disadvantages plaintiffs in more than one way. First, it strips the nursing home of the compelling factor of public scrutiny. They are less likely to enter a favorable settlement when they know that decision won’t be scrutinized by the public. Secondly, it takes away from victims the benefit of information that might have been gleaned from previous public trials, either against the same defendant or against another in similar circumstances.

Beyond that, cases that don’t go to court don’t necessarily need to follow – and won’t set – legal precedent. That means there are fewer checks and balances in the process. Arbitrators, whose rulings are binding, make decisions on what they perceive to be fair, rather than what the law directs. And some of these arbitrators receive regular work with individual nursing homes or nursing home corporations. This inevitably skews the fairness of the proceeding.

More often than not, arbitrators decide cases on terms more favorable to the nursing homes. Even if the victims “win,” their damage awards are likely to be far less substantial.

These are just some of the reasons why it behooves victims of nursing home abuse and neglect or their surviving relatives to challenge the arbitration agreement. And increasingly, this is happening on highly technical grounds that challenge the validity of certain clauses.

In the Massachusetts case, the son signed his mother’s arbitration agreement on her behalf when she was admitted. But while he was designated as her health care proxy, he lacked the authority to bind his mother into arbitration. Initially, in 2010 a court barred him from filing his wrongful death lawsuit because he’d signed this agreement. However, in 2014, another judge ruled in favor of the son. Now, the case is going to trial.

Nursing home arbitration agreements have come under withering criticism in recent years, and the federal government is weighing measures that would regulate the way nursing homes present arbitration agreements when residents are admitted. As some lawmakers have noted, no one should be forced to accept a denial of justice as the price for receiving the care they deserve.

Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract? Feb. 21, 2016, By Michael Corkery and Jessica Silver-Greenberg, The New York Times Dealbook

More Blog Entries:

Fort Lauderdale Crash Injury Victim Wins $300K Against Police, Feb. 14, 2016, Fort Lauderdale Wrongful Death Lawyer Blog