Nursing home abuse is a rampant problem in South Carolina. Many long-term care facilities are dangerously understaffed and underfunded to provide the necessary level of patient care. This often leads to physical, mental, and even financial abuse of nursing home patients. Victims of nursing home abuse can take legal action to seek financial compensation for their injuries. However, such lawsuits are often complicated by the presence of “arbitration agreements” that nursing homes demand residents sign during the admissions process. So, what exactly are these Nursing Home Arbitration Agreements? Are they enforceable in court? And how could they affect your rights if you, or someone that you care about, has been the victim of nursing home abuse?
What Is Nursing Home Arbitration?
An arbitration agreement is a written contract between two or more parties to resolve certain legal disputes through private arbitration, as opposed to courtroom litigation. An arbitration agreement can be a separate, standalone agreement, but it is more commonly included as a clause–often just a few sentences–in a lengthier agreement or contract, such as a nursing home’s admissions forms.
Every arbitration agreement is different. Generically speaking, the objective of such contracts is to force arbitration of any dispute that arises during the resident’s stay in the nursing home. This can include not just cases of neglect or medical malpractice but also of outright abuse. Some examples of nursing home abuse claims that could be subject to arbitration include:
- Physical assaults
- Sexual assaults
- Theft of a resident’s money or other personal property
- Failure to take steps to protect a residence against an infectious disease, such as COVID-19
- Wrongful death of a resident
Nursing homes often count on residents to not read all their admission forms before signing on the dotted line. This is true even when someone else signs for the resident, such as a family member or legal guardian. Indeed, when the priority is ensuring a person is admitted to a nursing home, few people stop to think about the potential legal ramifications.
So, what exactly do you sign away with an arbitration agreement? First and foremost, you give up the right to have your abuse lawsuit heard by a South Carolina judge or jury. Arbitration largely removes the regular courts from the dispute resolution process. Instead, the arbitration agreement specifies a particular form and method of private arbitration. In most cases, this means:
- A private arbitrator–either a single arbitrator or perhaps a panel–has the sole authority to hear evidence and decide the dispute. Arbitrators are often predisposed to side with nursing homes.
- Arbitration is not subject to the same rules of discovery and evidence as a South Carolina civil lawsuit. This can allow a nursing home to offer evidence that would otherwise be inadmissible in court, such as hearsay. It can also restrict a nursing home resident’s ability to seek evidence supporting their case through discovery.
- Arbitration is usually confidential, meaning there will be no public record of the nursing home’s abuse.
- An arbitration decision, known as an award, normally cannot be appealed or challenged in South Carolina courts.
- Depending on the terms of the arbitration agreement, it can be more expensive for the nursing home resident than traditional litigation.
In short, arbitration agreements rarely benefit nursing home residents who have been the victims of abuse.
When Are Nursing Home Arbitration Agreements Unenforceable?
Federal and South Carolina state law strongly favors the creation and enforcement of arbitration agreements. This can make it difficult for a nursing home resident to challenge such an agreement after the fact. But it is not impossible. Like any contract, a South Carolina judge can find an arbitration agreement unenforceable for several reasons, including:
- The nursing home resident never actually signed the agreement.
- The nursing home engaged in fraud, duress, or coercion to obtain the resident’s signature For example, the nursing home falsely stated the residents could not receive care unless they agreed to arbitration.
- The agreement, or some of its terms, are “unconscionable” as a matter of law.
One common challenge to nursing home arbitration agreements in South Carolina involves a scenario where someone else signed the agreement on the resident’s behalf. Let’s say your elderly parent needs nursing home care. You sign the admission forms on their behalf. Buried in the forms is an arbitration agreement. Does your signature bind your parent?
In many cases, the answer will be “no.” Take this recent decision from the South Carolina Court of Appeals, Pace v. Lake Emory Post Acute Care. In this case, the South Carolina Department of Social Services (DSS) took custody of a vulnerable adult, who was then admitted to the defendant’s nursing home. A DSS employee signed the resident’s admission forms, which included a separate arbitration agreement.
The resident later died while in the nursing home’s care. The resident’s son filed a wrongful death lawsuit against the nursing home. The nursing home then moved to enforce the arbitration agreement. Both the trial court and the Court of Appeals held the arbitration agreement was unenforceable.
As the Court of Appeals explained, the DSS employee had no legal authority to sign an arbitration agreement on behalf of the resident. State law permits DSS to take custody of a vulnerable adult to obtain medical services on their behalf. However, that does not include “legal services” such as signing an arbitration agreement. This was consistent with prior South Carolina cases, which held that a family member could not sign a binding arbitration agreement on behalf of a resident “near the time of admission” without any “actual or implied authority” to do so.
Contact a Greenville Nursing Home Abuse Attorney Today
Nursing homes have every incentive to deny and cover up allegations of abuse. That is why, if you or someone in your family has been the target of such abuse, you need to stand up for your legal rights.
Contact Jordan Law Center today to schedule a consultation.
