The NY Times have had a series of articles critical of the widespread use of mandatory pre-suit arbitration agreements in consumer contracts such as nursing home admissions paperwork. Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cellphone service, credit cards and student loans. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.
In their most recent installation, the Times discusses the case of Elizabeth Barrow. In September 2009, Mrs. Barrow was found dead at a local nursing home, strangled and suffocated, with a plastic shopping bag over her head. The killer, the police said, was her 97-year-old roommate. Workers at the nursing home, Brandon Woods in South Dartmouth, Mass., had months earlier described the roommate in patient files as being “at risk to harm herself or others.”
The roommate was charged with murder. The authorities did not focus on the nursing home, though. More than six years after the killing, Mrs. Barrow’s only son, Scott, is still trying to hold the nursing home accountable. “The woman had a history of problems,” Mr. Barrow said of the roommate in an interview this month. “She should not have been living in that room with my mother.” Having been blocked from court, Mr. Barrow was forced to go to arbitration. The nursing home had to turn over files that included the details about Ms. Lundquist’s past behavior.
In January 2009, court records show, workers at the nursing home reported that at times Ms. Lundquist “became jealous of her roommate, who she perceived sometimes got extra attention.”
Her agitation, the records show, grew when Mrs. Barrow had visitors. Ms. Lundquist also accused Mrs. Barrow of having “too many flowers and of taking her belongings,” according to records made by workers at the home just a month before the death.
Mr. Barrow was barred from taking Brandon Woods to court in 2010 because his mother’s contract with the nursing home contained a clause that forced any dispute, even one over wrongful death, into private arbitration. His legal team discovered that the arbitration firm running the hearing had previously handled more than 400 arbitrations for the law firm representing the nursing home company. The arbitrator ultimately ruled in the nursing home’s favor but provided no explanation. His ruling consisted of a single check mark, indicating that Brandon Woods had not been negligent in its care of Mrs. Barrow.
He has been trying ever since to get back to court, and next month he will finally get that chance. A Massachusetts state court is scheduled to hear Mr. Barrow’s case against the home, which has evolved into much more than a lawsuit about one woman’s death. It has become a crucial test of a legal strategy to prevent nursing homes across the country from requiring their residents to go to arbitration, where there is no judge or jury and the proceedings are hidden from public scrutiny.
State regulators and consumer advocates are concerned of the secretive nature of arbitration which obscures patterns of wrongdoing. Recently, officials in 16 states and the District of Columbia urged the federal government to deny Medicaid and Medicare money to nursing homes that use the clauses. Between 2010 and 2014, hundreds of cases of elder abuse, neglect and wrongful death ended up in arbitration, according to an examination by The New York Times of 25,000 arbitration records and interviews with arbitrators, judges and plaintiffs.
Judges have consistently upheld the clauses regardless of whether the people signing them understood that they were giving up their constitutional right to a jury trial. Mr. Barrow’s case is pivotal because, with the help of his lawyers, he has overcome an arbitration clause by using the fundamentals of contract law to fight back.
As is often the case when elderly people are admitted to nursing homes, Mr. Barrow signed the admissions paperwork containing the arbitration clause on his mother’s behalf. Although his mother had designated Mr. Barrow as her health care proxy — someone who was authorized to make decisions about her medical treatment — his lawyers argued that he did not have the authority to bind his mother to arbitration. In 2014, a judge ruled in his favor.
Appeals courts across the country have been throwing out arbitration agreements signed by family members of nursing home residents. For years, judges hearing elder-abuse cases rejected arguments that arbitration clauses in nursing home contracts were patently unfair because they were signed by people who did not understand them or perhaps even realize they existed.
“Any normal human being would say that these contracts don’t pass the smell test. But the courts don’t accept this,” said Martin S. Kardon, a plaintiff’s lawyer in Philadelphia with a focus on nursing home cases.