The Intelligencer published an editorial from Claudia Whittaker.
“It was the most worrisome week of my life. Seven days earlier I found my 91-year-old father unresponsive and lying over a table. The ambulance was called and he was transported to the local hospital. He was found to have a temperature of 102 degrees, was unable to walk and was not oriented to time, place or person. After an extended discussion with the Emergency Room doctor as to my fathers’ needs he was admitted to the hospital. He would remain there for seven days as they tried to find the source of an infection. Finally they said they had done everything that they could and that he needed to be transported to a nursing home.
A local facility was located, the transfer arranged. As his power of attorney I met with the admissions representative and signed intake paperwork (about an inch and a half of paperwork). I was assured that everything was routine. Time went on, Dad did not prosper but his most of his basic needs were addressed. There were far too frequent calls stating “your father’s fallen” and after a while I came to expect a call, ask if he was injured and I would plan to visit him to see what his most recent fall had done.
One morning, the week after Dad’s 93rd birthday, I got another call. “Come right away, your Dad’s fallen and it doesn’t look good”. I raced to the nursing home and observed a large blue tarp spread on the ground. I recognized my father’s slim ankle sticking out from the tarp. Somehow this slight 93-year-old wheelchair-bound man had gotten outside and fell down cement steps to his death. No one from the nursing home had any idea how this happened but they were all very sorry for my loss.
Little did I know at the time that not only had my father suffered a horrific death but I would learn that with my own hand I had signed away my family’s right to a jury trial for wrongful death.
It seems that when I signed that inch and a half of paperwork back on the day of Dad’s admission I signed a form that stated I agreed to binding arbitration. Not being knowledgeable about arbitration I had taken the admission representative’s word that it was “routine”. At the time I was frantic to find 24-hour care for my father.
I have since learned that a binding arbitration agreement waives a person’s right to a jury trial. The idea was formed to promote judicial economy and resolve disputes outside of the judicial forum. It also discretely keeps the issue out of public view. There will be no day in court, the wrongful death claim will be decided by one person, who may or may not be selected by the nursing home. There is no appeal. My naive belief that as US citizen I am entitled to my day in court has been shredded. I now understand that constitutional rights can be taken away even if you are a victim — and I want to educate people to prevent this from happening to them.
In an article published 8/15/17, AARP reported the Obama administration developed a ruling to stop nursing homes from including arbitration agreements in admission packets. The nursing home industry was challenging it in federal court.
The Trump administration plans to allow mandatory binding arbitration clauses to be a part of any admissions contract for every long-term facility that accepts federal money. This will apply to virtually all nursing home admissions.
Knowledge is power and the need to know about this practice gives everyone the key to stop it. Do not sign an arbitration clause. May your loved one never have the need for you to go to court or their behalf — but if things go wrong and a lawsuit is required retain your constitutional right to a jury trial.”
Claudia Whittaker lives in Buckingham.