The number of Americans age 65 and older is expected to double in the next thirty years. With advances in medicine and an increased life expectancy rate, that estimate may be low. Some forty-five percent of the U.S. population now sixty-five or older will reside in nursing homes before they die. Of the baby boom generation, it is expected that 5% or 3.9 Million people will eventually be cared for by these facilities on either a short or long-term basis. The number of nursing home litigation cases has increased significantly over the past ten years. Federal and state regulations have been promulgated that now govern virtually every aspect of a nursing home’s care of its residents. Nursing home litigation is now widely recognized as one of the fastest-growing areas of health care litigation.
Alternative dispute resolution (ADR), whether in the form of non-binding mediation or binding arbitration, provides litigants in nursing home liability cases a valuable and effective alternative to the time, expense, anxiety and uncertainty of protracted litigation and trial in the court system.
Types Of Cases MDRS Handles:
Our MDRS panel of neutrals have experience handing a wide array of nursing home abuse and neglect cases including, but not limited to, matters involving inadequate nutrition or hydration, mistakes in prescription medication, slip and falls or unattended falls, bedsores, sepsis, unreasonable or unnecessary restraints, unsanitary conditions, emotional neglect, failure to protect patients from violent or sexual assault, misconduct and rape, wrongful death and medical malpractice cases.
To better understand why ADR, specifically non-binding mediation and binding arbitration, is the preferable process for resolving these cases effectively, efficiently and fairly, a brief look at this area of the law may be helpful to those who might be considering ADR or selecting MDRS.
Federal and State Regulation of Nursing Homes:
The promulgation of federal and state regulations concerning how nursing homes must care for their residents has substantially fueled the large increase in litigation over the past decade. These regulations now cover nearly every aspect of nursing home care.
Briefly stated, federal law mandates the framework for what the states must do, and states may impose additional regulations. Nursing homes are federally regulated by the Omnibus Budget Reconciliation Act of 1987 (OBRA), 42 U.S.C. §§ 1395-1396 (1999), and are individually licensed in the state where they operate. OBRA lays out standards for nursing homes, along with a patients’ bill of rights. Notably, OBRA requires nursing homes to conduct an annual assessment of each individual resident, create individualized care plans, reduce the use of chemical and physical restraints, and ensure adequate staff training in special needs situations. Among the rights guaranteed to residents under OBRA, is the right to be free from neglect and abuse. Facilities receiving federal funds through Medicare and Medicaid must comply with OBRA.
In Massachusetts, nursing home regulations are issued by the Department of Public Health (“DPH”). Regulations issued by the Massachusetts Attorney General fall under the state Consumer Protection law, Ch. 93A, and these regulations are designed to supplement existing statutes and regulations. The Attorney General works and cooperates with other state and federal agencies in enforcing 940 CMR 4.00 and other regulations. 940 CMR 4.00 Long Term Care Facilities defines certain unfair or deceptive acts or practices. These regulations are designed to promote the protection, comfort, health and well-being of consumers of services provided by long-term care facilities, to be consistent with existing legal standards, and to be as responsive as possible to the constraints and administrative realities under which long-term care facilities operate.
Massachusetts Governor Deval Patrick recently signed legislation which establishes minimum care standards at dementia special care units and nursing homes. The legislation will provide dementia-specific training for direct-care workers, activity directors and supervisors in traditional nursing homes and special care units.
Claims for Violation of MGL c. 93A Consumer Protection Statute:
The attorney general has promulgated regulations pursuant to M.G.L. c. 93A, § 2(c) to promote the protection, comfort, health and well being of nursing home residents. The regulations define acts and practices that constitute unfair and deceptive acts and practices prohibited by the Consumer Protection Statute. The regulations also provide that it “shall be” an unfair and deceptive act and a per se violation of the Consumer Protection Statute for a nursing home or the administrator of a nursing home to fail to comply with any existing state or federal statute, rule or regulation which provides protection to residents of long-term nursing care facilities.
The Massachusetts Patients’ Bill of Rights (M.G.L. c. 111, § 70E), the Department of Public Health regulations (105 C.M.R. 150 et. seq.), the attorney general’s regulations (940 C.M.R. 4.00, et. seq.), the Nursing Home Reform Act (42 U.S.C. 1395i-3, 1396r) and the Federal Health Care Financing Administration Regulations (42 C.F.R. 483, et. seq.) all have regulations which if violated can risk exposure by long term care facilities to punitive damages and attorneys’ fees under the Consumer Protection Statute.
As a result, nearly every nursing home negligence case has been accompanied by a 93A count citing one or more of the many applicable regulations as the foundation of the 93A claim, raising the potential for significant damage awards in these cases.
Causes Of Action Brought In Nursing Home Liability Cases:
Causes of action brought in these matters often include, but are not limited to:
- Negligence claims…where negligence per se is a very important cause of action, based upon reasoning that a statute or regulation sets the standard of care and the unexcused violation of a legislative enactment or administrative regulation is therefore negligence in itself.
- Wrongful death claims.
- Intentional tort claims…where a deliberate act causes harm, such as where a patient is the victim of a sexual assault or assault and battery.
- Negligent hiring and supervision claims…including claims that a nursing homes is understaffed or where there is too little training… these issues will include staff training, adequacy of medical care and nursing care and profit motive of the operator.
- Loss of consortium….a claim by a loved one of the resident, typically a spouse or child, for their suffering as a result of the resident’s injury or abuse.
- Third party responsibility…a nursing home can be found liable because of acts of a third party when the nursing home fails to protect residents from other residents or others in the home and is thereby injured or assaulted by another resident.
- Breach of statutory or regulatory rights, duties or responsibilities.
- Chapter 93A Consumer Protection Claims where punitive damages and attorney’s fees may be sought.
Why ADR Is The Answer In Nursing Home Liability Cases:
Experience suggests that perhaps no area of alternative dispute resolution contains more emotional issues than nursing home liability cases and elderly abuse. It is often the adult children who must decide to place their parent in the care of a nursing facility, a decision that is difficult for the entire family and often associated with emotions of guilt, anxiety and perhaps disagreement as to the choices made when the parent’s health may be rapidly deteriorating. If and when the parent suffers injury, illness or death while at the facility, anger and the desire for retribution can be accordingly great. It may be difficult for the family members to consider defenses or arguments made by the facility or their attorneys, whether rightly or wrongly, that the injury, illness or death may have been a byproduct of the parent’s deteriorating medical condition and not the fault of the facility.
Mediation is an ideal forum for parties in these emotional cases. An experienced mediator, with substantive knowledge of the law as well as the facts of the specific case, will sculpt a process where all parties can be heard with respect and even-handedness. After a joint session with all parties, the mediator will likely have individual private and confidential meetings with the plaintiff and key family members first and then the defendant and their representatives, focusing on the key issues of the case and will typically point out the risks associated with each side’s position in an effort to ensure maximum flexibility and compromise. Experience suggests that nearly 90% of mediated nursing home liability cases reach settlement at the mediation session. When settlement is reached the mediator will obtain a signed and binding settlement agreement.
Generally, most cases submitted to Massachusetts Dispute Resolution Services for binding arbitration are by parties who, with equal bargaining power, mutually agree at some point after a dispute has arisen to avoid the many disadvantages of litigation and trial in the Court system and resolve their case through the use of a mutually acceptable arbitrator, who will render a binding decision.
However, particularly over the course of the last ten years, there has been a significant increase in the use of pre-dispute mandatory arbitration clauses being contained in various contracts existing between parties, including nursing home contracts. Where parties, with equal bargaining power, mutually agree in advance to bring disputes that may arise between them to binding arbitration, the Courts, including Massachusetts, have given great deference and support to the validity of such pre-dispute mandatory arbitration clauses.
However, there have been several cases recently litigated where a nursing home resident or their family allegedly did not know or fully understand that they had given up their right to bring to Court their liability claim when they signed a nursing home contract upon admission. The Courts, both federal and state, have been called upon to decide the validity and enforceability of such arbitration clauses, with varying results.
For a more expansive look at these cases please refer to our recent MDRS article Arbitration – Voluntary or Mandatory? The Use of Pre-Dispute Arbitration Agreements.
Factors considered by the Courts in deciding whether to uphold, or to void as unconscionable, a mandatory arbitration clause in a nursing home contract include: the intelligence and education of the signatory, his familiarity with the process of admission, whether they were required to sign the agreement as a condition of admission, any undue influence or pressure put on the signatory, whether the arbitration clause was obvious and/or presented as a separate document or was buried within a large document, whether it was discussed or explained at the time of admission, whether it was bilateral in that either party can invoke its provisions, whether all rights and remedies available in the courts were preserved for the arbitrator, whether there was a unilateral right of rescission for a given period after execution of the agreement, whether the patient’s acute condition had created overwhelming pressure on a relative to sign, and whether the arbitration agreement limited the residents’ right to file a grievance or complaint with the facility or any appropriate government agency, from requesting an inspection from such an agency, or from seeking review under applicable federal regulations of a decision to transfer or discharge the patient.
For an instructive Massachusetts case on this topic please see Miller v. Eric Cotter & others, 448 Mass. 671 (2007).
Pending legislation concerning pre-dispute arbitration agreements:
H.R. 6351 (112th): Fairness in Nursing Home Arbitration Act of 2012 was filed in August of 2012 and would make any pre-dispute arbitration agreement between a long-term care facility and a resident of such facility (or person acting on behalf of such resident, including a person with financial responsibility for such resident) invalid and specifically unenforceable. Prior versions of this act have been filed yearly since 2009 and have not garnered sufficient support for passage.
Litigation and trial within the Courts of a nursing home liability case will be complex, expensive, time consuming and emotional for all parties involved, with a result that will be uncertain. Non binding mediation and/or binding arbitration of these difficult cases offers parties an alternative approach that can achieve a result that is efficient, effective, fair and economical, and ADR is a more appropriate forum for resolution.
An experienced mediator or arbitrator, with knowledge of the complex law in this area and with the ability to understand the complex facts usually involved, is better suited than a lay jury, after years of litigation, to achieve an appropriate result.
Should you wish to submit a nursing home liability case to MDRS or have any questions we can answer please contact us at (800) 536-5520. We can help you resolve your case.