Trial Magazine

Mary Smith moved into a nursing home after ­undergoing two major back ­surgeries. The facility had clear instructions that she was not allowed to move around on her own, and staff was to ensure she had a back brace on at all times while mobile. The same day she was ­admitted, a caretaker took her into the ­bathroom—without her back brace—and left her alone. Mary slipped and fell, fracturing her back. 

The nursing home ignored Mary’s complaints about the injury. It was not until she was transferred to a different facility that her pain symptoms were evaluated, and it was discovered that she had been suffering from a fractured back. As a result, Mary’s health deteriorated, and she had to undergo additional surgeries.

When Mary and her family tried to hold the negligent nursing home accountable, the corporation that ran the facility tried to force Mary into arbitration. Imagine being in this situation—unable to seek justice for your mother’s suffering caused by a negligent nursing home because the corporation behind the facility can use pre-dispute forced arbitration, with an arbitrator of its choice, to decide the case. No public hearing. No accountability.

Fortunately for Mary, a court ruled that the arbitration agreement was invalid because she signed it while under the influence of strong pain medication. But many nursing homes across the United States have forced arbitration clauses in their admission contracts that prevent people who are harmed from having their day in court. During the emotional and difficult decision to place a relative in a nursing home facility, it is easy to miss the fine print in the admission contract that attempts to have them sign away the right to sue the nursing home for negligence.

AAJ is working to change that. AAJ strongly opposes forced arbitration clauses and has urged the Centers for Medicare & Medicaid Services (CMS) to reaffirm nursing home residents’ and their families’ ability to enforce their rights under state and federal law. CMS is currently seeking to repeal a rule that prohibited mandatory, pre-dispute arbitration clauses from nursing home admission contracts (read more on p. 40). We are fighting against this repeal in support of the rights of nursing home residents and their families.

As we work to ensure our clients have access to the courtroom, we also need to be prepared to represent them. In this month’s issue of Trial, learn about bringing claims against nursing homes for failing to protect residents from violence (p. 38), assisted living facilities (p. 24), hospice providers (p. 44), and predatory reverse mortgage lenders (p. 30).

The Nursing Homes Litigation Group, organized in 1987, is still one of AAJ’s most active Litigation Groups. It offers members a manual of pleadings, discovery, briefs, and regulatory updates. The AAJ Exchange offers 11 Litigation Packets on issues related to nursing homes or senior living facilities. Learn more at www.justice.org/exchange.

Two recent AAJ Education programs focused on techniques for nursing home cases. The Nursing Home 30(b)(6) Webinar explored how to use discovery against powerful corporate opponents, and the In-Depth Look at Cost Reports Seminar in Dallas taught attendees how to successfully use these reports to prove their clients’ cases. Recordings from both events are available at www.playbackaaj.com.

I have heard many stories like Mary’s, in which nursing home neglect has led to disastrous situations. It is our job to protect these individuals. Thank you for everything you do in and out of the courtroom to help injured people and their families.

Mary Smith’s case is real; the plaintiff’s name was changed for privacy reasons. 

Kathleen Nastri is an attorney at Koskoff, Koskoff & Bieder in Bridgeport, Conn. She can be reached at kathleen.nastri@justice.org.