Medscape published an article from Margaret R. Nolan, DNP, GNP about taking away nursing home residents’ right to sue for abuse and neglect.  Margaret R. Nolan. Nursing Home Residents: No Right to Sue for Unsafe Care, and It’s Wrong – Medscape – Nov 14, 2017.

Litigation or Arbitration When Nursing Home Care Is Unsafe?

The Centers for Medicare & Medicaid Services, under the new administration, has announced changes to nursing home residents’ and families’ ability to sue for episodes of substandard care. Under this new plan, incoming residents and their families will sign away the right to litigate upon admission and, instead, agree to solve disputes through arbitration rather than through the courts.

Unsafe levels of care in nursing homes are, unfortunately, common. The federal government attempts to provide close oversight of nursing homes; but, in spite of being placed on a strict oversight status, in many states, hundreds of nursing homes still provide unsafe care to patients. The courts are viewed as a fail-safe option for patients’ protection. Litigation is often the only means to force nursing homes to provide standard, safe care.

The new administration is supporting arbitration settlements alone for wrongful care of residents. Many consumer groups and attorneys general strongly oppose this plan and believe that litigation is an effective way to ensure that nursing homes deliver appropriate care to vulnerable residents.

 Viewpoint

The elderly residents of nursing homes or long-term care are highly vulnerable to abuse. The Obama administration attempted to make it easier for nursing home residents to litigate for suspected negligence or abuse, but the bill never became law. A particular concern was that the promise to arbitrate was often buried in nursing home admission documents so that families were often unaware of this option. Under the Trump administration, nursing home residents will continue to sign arbitration agreements instead of having the option of suing. If new residents refuse, they could be denied admission to the facility. The Trump administration has asked for more understandable language for incoming nursing home residents so that they can better understand what they are signing, but opponents argue that without choice, it’s still mandatory for the incoming resident to sign.

On a larger scale, the current administration is trying to cap medical malpractice claims and shorten the statute of limitation to 3 years. Many fear that this will also lead to more deaths and injuries and weaken safety for patients, especially those who reside in nursing homes.

This is a critical time for nursing leaders to speak up about geriatric care, safety, and abuse. Nurses need to help educate our leaders to make good decisions that will protect vulnerable residents in nursing homes.”

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