Deciding whether to move a loved one into a nursing home is one of the toughest decisions that a person may face in a lifetime. Once the decision is made, transitioning to a nursing home can be both emotional and overwhelming. There are multiple forms that must be reviewed and signed before admittance, some of which are filled with tedious fine print and complicated legal jargon. Now, imagine that a loved one is harmed by the nursing home. Would you be shocked to find out that you may have contracted away your right to sue the nursing home?
This is exactly what happened to Mr. Scott R. Barrow after his mother was tragically killed at Brandon Woods nursing home in Dartmouth, Massachusetts. Mrs. Elizabeth Barrow had just celebrated her 100th birthday a month before she was found strangled and suffocated in her bed at the home. The killer turned out to be her 97-year-old roommate, Ms. Laura Lundquist.
The Nursing Home Knew that Ms. Lundquist was “At Risk to Harm Herself or Others”
Ms. Lundquist had suffered from dementia, delusions, and paranoia. Patient files indicated that she was “at risk to harm herself or others.” In spite of her mental diagnoses, Ms. Lundquist had been friendly with Mrs. Barrow. Over time, however, Ms. Lundquist had become increasingly paranoid and felt that Mrs. Barrow was receiving too much attention at the home. Such tension escalated to the point that a minor dispute over a table in their shared room resulted in Ms. Lundquist ending Mrs. Barrow’s life.
While Ms. Lundquist was charged with second-degree murder, she ultimately was found incompetent to stand trial due to her fragile mental health. Mr. Barrow does not want to see Ms. Lundquist prosecuted for the murder. “It would be like prosecuting a 2-year-old,” he stated. “It’s just an awful thing that happened. How could she be held accountable for this when she’s not in the right mind?”
However, Mr. Barrow does want to see the nursing home held accountable for placing his mother with a dangerous roommate. Unfortunately, Mr. Barrow signed a binding arbitration clause with Brandon Woods when his mother entered the home, which prohibited him from suing them.
What Is Arbitration?
Arbitration is the process of submitting a dispute to an impartial third party to resolve a conflict. This impartial third party is called an arbitrator. The decision made by the arbitrator is normally final and is rarely reviewed by the Courts.
Arbitration clauses have become commonplace in contracts, as companies and providers hope to avoid costly lawsuits. Arbitration clauses have become so standard that your credit card company and your medical providers likely have arbitration clauses in any contract that you sign with them.
While the definition of arbitration may sound innocent enough, arbitration does have some potential pitfalls that you need to consider before agreeing to arbitration.
Three Potential Pitfalls of Arbitration Clauses and Proceedings
First, arbitration clauses can be buried in a contract and can be very confusing to the average person. Often people read these clauses and do not understand what they are signing and have no idea that they are being asked to contract away their right to file a lawsuit. This is especially the case when you are dealing with individuals who may suffer from dementia or intellectual disabilities.
The second problem with arbitration is that the proceedings are private and usually confidential. Litigation is a much more public affair in which filings and decisions can be accessed by the public and the media. In this sense, forced arbitration allows negligent companies to shield themselves from negative press. Companies with poor track records can avoid public outrage by forcing arbitration on anyone who enters into a contract with them.
Finally, you have to hope that the arbitrator is truly neutral and objective, but this is not always the situation. In Mr. Barrow’s case, he discovered that the arbitration firm handling his dispute had previously overseen more than 400 cases for the law firm representing Brandon Woods. It raises the question as to whether the arbitration firm could remain objective when they had an extensive business relationship with one of the parties involved.
Mr. Barrow Lacked the Legal Authority to Sign the Arbitration Clause
In this particular case, the arbitrator sided with the nursing home, but provided little to no explanation for the ruling. While disappointed, Mr. Barrow hoped to overcome the arbitration clause by proving that his mother never agreed to arbitration.
As it turned out, Mr. Barrow had been given the legal authority by his mother to make medical decisions on her behalf. However, he had never secured a power of attorney from her which would allow him to make a wider range of decisions on her behalf. Thus, Mr. Barrow did not have the authority to agree to arbitration for his mother. The Court agreed with him.
Do Not Sign Any Forms or Contracts That You Do Not Understand
We sign contracts every single day of our lives. If you join a gym, there will be paperwork to sign. Want to rent a car? You will need to complete a contract. In a world filled with forms and paperwork, it is easy to overlook the fine print. But unfortunately, Mr. Barrow’s story speaks to a sad and pervasive truth: the fine print may seem like boilerplate language with little to no value, but it can have dire consequences. Before you or your loved ones sign a contract, make sure you understand exactly what it is that you are signing. This is especially crucial when you are entering into an important contract that deals with your loved one’s medical or long-term care needs. You may not think it is important at the time, but should a problem arise, you may discover that you have given up some valuable legal protections like your right to sue a negligent company.