It is Now Easier to Sue Nursing Homes (or Is It?)

A landmark decision by the Centers for Medicare & Medicaid Services, a division of the U.S. Department of Health and Human Services, guarantees nursing home residents and their families their right to sue long-term care facilities despite forced arbitration clauses. The agency is directly responsible for Medicare and Medicaid funding. It now prevents these facilities from forcing residents to pursue elder abuse and wrongful death claims via arbitration. This rule extends protections to over 1.5 million residents in nursing homes that receive federal funding, which includes most facilities.

The Problem with Forced Arbitration

Thanks to this new rule, all nursing homes that receive any kind of federal funding are barred from forcing their residents into mandatory arbitration. Arbitration is a dispute resolution method in which two parties agree to resolve a dispute outside of court. When arbitration is forced, it typically leaves the consumer at a severe disadvantage. Throughout the years, such clauses have shielded disputes from the public eye, including serious issues regarding safety and care in nursing home facilities.

In the past, the courts have grudgingly turned away cases of extreme circumstances because the residents had signed a forced arbitration clause. These clauses are often hidden in the contracts residents are required to sign to acquire services; an increasing number of consumers are forced to choose between receiving medical care and their constitutional right to sue for damages. Due to these predatory arbitration clauses, victims of horrible abuse, neglect, and even murder have not been able to receive justice.

Arbitration ensures that your case will never be discovered by the public. Even if you suffered unimaginable levels of abuse at the hand of the care facility, prospective residents will never know your pain. They will also never know what they are likely to receive should they suffer a similar grievance.

old woman at nursing homeThe Case of the 100-Year-Old Murder Victim

Senior resident Elizabeth Barrow was found dead with a plastic bag around her head in a Massachusetts nursing home in 2009. It was discovered that it was her 97-year-old roommate’s doing. Laura Lundquist, diagnosed with dementia, believed that Barrow was going to “take over the room.” Despite her mental state, Lundquist was still charged with

By |May 4th, 2017|Elder Abuse|

How Forced Arbitration Can Ruin your PI Claim

It wasn’t very long ago that General Mills — manufacturer of dozens of familiar food brands such as Cheerios, Betty Crocker and Pillsbury — raised hell when it changed the legal terms on its website requiring all disputes related to the purchase or use of any of its products to go through mandatory arbitration for resolutions. Consumers were outraged that engaging with the company online– whether by using their website, joining their online community, subscribing to email newsletters, or even downloading a coupon– could make them lose their right to sue General Mills for any future wrongdoing.

After copious pressure, General Mills caved. They reversed their position, but still hundreds of large corporations are subjecting consumers to forced arbitration in their terms and conditions. Clauses are even present in employment contracts.

What is Forced Arbitration?

Arbitration is an alternative method of resolving legal disputes in which two or more parties present their sides of a complaint to a “neutral third party” or “neutral panel” outside of a courtroom. There is no judge or jury; it is this “neutral” party who then decides, after hearing both sides, what the proper course of action should be. There is also no way to appeal the decision reached.

Many cases of arbitration involve parties that all mutually agreed to the arbitration. It is increasingly common for personal injury complaints to be resolved this way; it is just one of several avenues you can take to resolve your case, provided you are given the option.

Forced arbitration clauses are present in the fine print of contracts for everything from car loans and student loans to leases, credit cards, checking accounts, insurance contracts, and even nursing home agreements. If you have ever purchased on Amazon, Groupon, paid a Netflix subscription or obtained cell phone service through any of the big providers, you have signed an arbitration clause and may not even know it.

Effects on Consumers

Proponents of arbitration always try to spin it as a low-cost, informal alternative to lawsuits. They purposely mislead consumers by emphasizing there is no requirement for their representation by an attorney. Surely, a company like General Mills could afford to and would bring their own attorneys to arbitration had they

By |April 28th, 2017|Elder Abuse, Personal Injury, Protecting Oregonians|

Harm an Elder or Disabled Person in Oregon? Pay Triple.

“…the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; those who are in the shadows of life; the sick, the needy and the handicapped.” -Hubert Humphrey

Lincoln, Thomas Payne, Pope John Paul II and Jimmy Carter all recognized the same. If protection of vulnerable is a government morality litmus test, Oregon has earned a higher cloud in heaven. Oregon laws protect “vulnerable persons” from a wide range of abuse and neglect as defined below.

Who is a ‘Vulnerable Person” under Oregon Law?

In Oregon, a “vulnerable person” includes:
• An elderly person (65 or older);
• An incapacitated person; and
• “Susceptible” persons with a mental or physical disability
See, ORS 124.100 (1)

Me and dad

Of these groups, the elderly is bar far the largest. According to the Administration on Aging, in 2014 persons 65 or older then represented 14.5% of the population or roughly one in seven. And, by 2020 elderly people, as defined above, will grow to about 21.7% of the population. Thus, elder abuse is the focus of this blog but the same rules apply others deemed “vulnerable” under Oregon law.

Just this morning several “elderly” people ran and biked past me on the south waterfront trail—each probably silently translating War and Peace from Chinese to Arabic as I eat dust. Under Oregon law, it does not matter. A person 65 or older is a “vulnerable person” per ORS 124.100 (1).

In Oregon protecting senior citizens and disabled people from abuse and neglect is a top priority for good reason. Up to five million elderly persons across the United States experienced some form of financial or physical abuse. Of these, only 20% of these instances are ever reported. While we don’t yet have reliable statistics showing how many people suffer from elder abuse and neglect, according to the National Center on Elder Abuse female elders are abused more frequently than males. Also, the chance of being abused increases with age and dementia.

Oregon’s laws allow recovery of triple economic and emotional damage (pain & suffering) plus reimbursement of attorney fees spent in bringing suit against the offender(s). ORS 124.100 (2). This rule was designed to punish and dissuade harmful conduct which is sometimes easily hidden and perpetrated by trusted caregivers and even family members.

By |May 25th, 2016|Elder Abuse, Personal Injury|