The Legal Intelligencer had an interesting article about recent Pennsylvania cases involving mandatory arbitration in the nursing home context.  The author comments that the Court considered the fairness of the circumstances of the signing of the arbitration clauses.

 

In Wisler v. Manor Care, for instance, the Superior Court decided Sept. 8 that an arbitration agreement signed by the patient’s son, as power of attorney, was invalid for purposes of compelling arbitration in a survival act claim by the patient’s estate.

In Taylor v. Extendicare, the same court chose to favor consolidation of a case instead of bifurcating it to arbitrate one of multiple claims.

In Bair v. Manor Care, the Superior Court decided an arbitration agreement was unenforceable because a representative for the nursing home had not signed it.

In Wert v. Manorcare, the justices agreed to consider whether the intermediate court correctly voided the entire arbitration agreement, because the designated arbitrator entered a consent agreement that it would no longer arbitrate consumer claims, and whether the court could ignore evidence that the party seeking to void the agreement did not read it, as an element of deciding whether the arbitrator designation was integral to the contract.

Pending before the Superior Court for reconsideration is Macpherson v. Magee Memorial Hospital, which deals with procedural and substantive unconscionability of an arbitration agreement as one of the main subjects.

 

 The U.S. Supreme Court decided Marmet Health Care v. Brown in 2012, holding that the FAA pre-empted a West Virginia prohibition against predispute arbitration agreements involving nursing homes.  Nursing home defendants are “using Marmet to basically say no matter what the situation is, you need to enforce these arbitration agreements, and I think that’s a complete misreading of the Marmet decision,” attorney Trzcinski said.

 

Brian D. Reddick of Reddick Moss, a former attorney for nursing home operator Beverly Enterprises, who now heads a national firm that handles nursing home litigation, said he has noticed a nationwide uptick in cases related to nursing home arbitration agreements, particularly in the past six to eight years.

 

“As the nursing homes get called out on agreements that are clearly one-sided or unfair, they’re forced to revise their agreements,” said Trzcinski. “They get called out and a particular part gets struck down. … Then they have the attorneys revise the contracts and substitute other unfair conditions.”

 

 

Cleo Lumpkin was arrested and released after the Milan Police Department received an anonymous call Sept. 12 of a nursing home patient being assaulted by an employee.  Milan Police Chief Bobby Sellers said he is unsure what job he held. Sellers said investigators reviewed the video and saw the patient trying to get into a secured area inside the nursing home.  Lumpkin saw the vulnerable adult and he walked up to the man. The patient allegedly raised his arm, and Lumpkin started hitting the patient, Sellers said.  “Basically, he beat the patient pretty badly,” Sellers said.  According to police, Lumpkin punched the patient eight times with one hand while pinning him to the wall with his other hand.

Investigators spoke with the weekend supervisor at the nursing home on Sept. 12, who said she knew about the assault but thought the police had already been notified. Milan Health Care’s administrator, John Simonton, said he emailed a detective with the police department on Sept. 10 after he became aware of the assault, according to an incident report. The detective who he emailed did not work that day and had not seen the email, according to the report.  According to the report, Simonton told investigators he watched the video footage and immediately fired Lumpkin.

 

WOWT reported that Barbara Fallon was charged with assault and abuse of a vulnerable adult after accusations arose that she was slapping elderly patients at the Waverly Care Center where she worked.  Lancaster Co. Sheriff Terry Wagner said that Fallon pushed and slapped the arms of elderly women, aged 73, 79 and 89. Fallon is no longer employed at the facility.

One aspect of neglect is failure to properly maintain safety equipment. This failure, as reported by the Star Tribune, on the part of one Rochester nursing home resulted in one resident’s death last year. The resident was being transferred from a bed to a wheelchair when they fell 4 feet after the transfer harness slipped. The safety catch which would normally catch a resident in a situation like this was missing.  Maple Manor Health Care & Rehabilitation had been having problems with a mechanical lift used for moving patients but ignored safety precautions and had no records of inspections and maintenance done on the lift.

After the fall, the resident had fractures of the spine and a scalp laceration, dying less than a week later in the hospital. Mechanical lifts have caused injury and death in nursing homes across the US and the world. Mark Kosieradzki, Plymouth attorney, says that human error and misuse of lifts are always to blame.

These devices are simple, but they need to be operated correctly. We see over and over again that facilities cut corners in operating lifts and people die.” In addition, Maple Manor had a history of improper maintenance of their mechanical lifts. In fact, state investigators found that the home had been experiencing problems with safety catches popping off for six to nine months before the resident fell. This type of neglect is something that could have been fixed so easily, with limited cost and time. However, Maple Manor couldn’t be bothered to solve the problem and their negligence resulted in a resident’s death.

The Arkansas News reported the important decision from the Arkansas Court of Appeals (Order) which overturned a Jefferson County circuit judge’s ruling that Davis Life Care Center nursing home is immune from a wrongful-death lawsuit.  The appeals court said the judge erred in dismissing the wrongful-death lawsuit against Davis Life Care Center because of the allegation that the facility is a charitable entity.

The Court of Appeals said there are questions of fact regarding whether Davis Life Care Center was truly operating as a charity and was entitled to charitable immunity from civil suits.  The nursing home argued that it has operated at a loss since its inception in 2001, but the Court of Appeals said that “one might inquire as to how Davis has the ability to remain operational after over a decade of financial losses.”  “The lack of a profit in a longstanding business could cause reasonable minds to question whether an entity is truly operating at a deficit each year or manipulating its financial records to create the perception that it is operating at a deficit,” the court said in an opinion written by Judge Rita Gruber.

The court said a contract between the nursing home and Morrison Management Specialists calls for Morrison to provide dining, housekeeping and maintenance services to Davis Life Care Center and several other entities — at least two of them for-profit ventures — described as collectively doing business as Davis Life Care Services.  “This contract, at the very least, raises factual questions regarding whether Davis was abusing the charitable-entity form by utilizing Davis Life Care Services as a means to conceal profits,” the court said in the opinion.

The nursing home also argued that it gives some free care to patients, but the Court of Appeals said the evidence shows that all patients are initially charged for their care and that only after a patient does not or cannot pay a debt is the debt forgiven. The amount of bad debt forgiven by the nursing home totaled less than 1 percent of its revenue in 2011, 5.76 percent in 2012 and 2.2 percent in 2013.  “We hold that reasonable minds could view this minute amount of debt forgiveness as creating a facade of charity instead of a true charity,” the court said in the opinion.

The Court of Appeals also said the evidence shows that the nursing home received donations totaling less than $100 in 2012 and 2013, a “paltry” amount that the court said could not significantly have affected the nursing home’s finances.