For years I have been opposed to mandatory, binding arbitration in all consumer agreements and transactions and have been actively involved in the fight to ban them. While mandatory arbitration over a consumer’s credit card dispute is bad, putting arbitration clauses in nursing home admission forms is about as low as it gets. The following sad story illustrates why this sort of thing is so bad.
Mack Mitchell had suffered several mini strokes and was diagnosed with Alzheimer’s in 2004. After another stroke in March 2005, he was treated at Baptist Hospital in Collierville, TN and then transferred to Cordova Rehabilitation and Nursing Center. On April 8, 2005, Lovie Mitchell went to visit her husband Mack. When she arrived at Cordova, Mrs. Mitchell was directed to Cordova’s admissions counselor, Ron Lee. Mr. Mitchell was not competent to sign his own admissions papers, and Cordova needed Mrs. Mitchell to sign them for him.
Because of her condition, Mrs. Mitchell was not able to read the agreement herself. Instead, Mr. Lee summarized its terms, and Mrs. Mitchell signed it. During the three months that Mr. Mitchell was a patient at Cordova he suffered from multiple falls, a laceration from a fall, unnecessary physical pain and severe neglect which led to his eventual death.
At the time of the meeting, Mrs. Mitchell was experiencing severe health problems. Since January 2004, she had been undergoing chemotherapy treatment for Stage 3 cancer. She was also taking medication to treat depression, anxiety, fatigue, and chronic anemia. Side effects of her treatment included blurry vision and difficulty concentrating. Clearly, she had no business signing an agreement for arbitration hidden in nursing home admission forms.
Mrs. Mitchell later filed a lawsuit against Cordova/Kindred. In response, Kindred attempted to force Mrs. Mitchell to go to arbitration instead of court. The trial court ruled in January that Kindred could not force Mrs. Mitchell into arbitration because she was incompetent when she signed the contract. In mid-November, however, the Tennessee Court of Appeals reversed that decision and ruled that Mrs. Mitchell must enter into binding mandatory arbitration. That was a very bad decision, but is one that the Mitchell family will have to live with.
As we have reported previously, legislation has been introduced in Congress called the Fairness in Nursing Home Arbitration Act. If passed, the new law would put an end to practices such as the one described above which prey on families. Before recessing, the House and Senate Judiciary committees passed the bill. It’s now awaiting action by the full Senate.
The Mitchell case is just one of many examples across the country of elder Americans who are forced into signing arbitration clauses in nursing home admission forms in order to receive long term care. Often these patients and their family members are suffering from medical problems such as dementia or the side effects from prescription drugs. In such cases, they are not competent to sign any legal agreement and certainly not an arbitration agreement hidden in a series of forms. Even a person with no impairments of any kind should be forced to sign for arbitration in a nursing home admission form. Hopefully, the new Congress will pass the pending bill and it will become law.
Source: American Association for Justice
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