Recently, consumer health and advocacy groups fought to prevent the rollback of a rule announced last year by the Centers for Medicare and Medicaid Services (CMS). The rule would have blocked long-term care facilities from requiring patients and their families to sign away their right to go to court over alleged abuse. Righting Injustice explains that the nursing home industry has been fighting the rule even before it went into effect, and a Trump administration effort is giving the industry more firepower.

Earlier this summer CMS, now under the control of the new administration, proposed a revised version of the rule instead of a full repeal. The proposal would allow forced arbitration clauses – arbitration agreements patients and their loved ones must sign to be admitted to the facility – but they must be communicated in plain language and explained thoroughly. Understandably, advocates warned that the newly proposed rule still offers more protection for nursing homes than the patients.

When patients or their loved ones are forced to give up their Constitutional right to a trial by jury, they lose significant leverage to hold nursing homes accountable. Put another way, under the shadow of arbitration, nursing homes can continue to avoid any serious consequences for their wrongdoing.

The following are just a sample of recent stories from across the nation of alleged abuses nursing home residents have been forced to endure. These depict the types of wrongdoing that escapes real accountability because of forced arbitration.

  • In Charleston, South Carolina, NBC affiliate WCBD reports that nursing homes across the state can legally conduct initial and routine strip searches, including body cavity searches, of their patients.
  • After being robbed of his ability to walk, speak or breathe because of a car accident 26 years ago Steven Wenger has been confined to a bed and on a ventilator. According to ABC News, Steven has suffered two infestations of maggots that developed around the hole in his throat near his breathing tube. A state investigation officially determined both incidents were due to days of neglect by supposed caretakers at a New York state group home for the severely disabled.
  • A former emergency room nurse, Suzanne Edwards, dedicated her career to taking care of patients, but now suffers from dementia. Her son Kent placed her in a Minnesota nursing because of Suzanne’s tendency to wander at night. He explained that she believes she is still working the night shift at the hospital. The nursing home informed Kent “there had been some taunting or harassing,” but refused to provide any further details. Minneapolis, Minnesota’s NBC affiliate KARE-TV learned that Suzanne was verbally assaulted, her nightgown pulled up to expose her naked body and threatened while aides held the flame of a lighter near her face.

Consumers face more roadblocks to justice because of state laws and regulations that allow nursing homes and other long-term care facilities to remain tight-lipped about incidents of abuse and neglect. Yet, when an injured patient’s lawyer successfully discovers the information, they are still blocked from using the unfavorable evidence in arbitration proceedings.

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If you need more information on nursing home litigation contact Chris Boutwell at 800-898-2034 or by email at Chris handles nursing home litigation for our firm, and he will be glad to talk with you.

Righting Injustice
ABC News
Jere Beasley Report (March 2017)

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