An elderly client of mine lost her leg a couple years ago after she suffered a fall at an Iowa long term care facility. A widow and 79 years old, she had entered the nursing home a few months earlier because of her inability to care for herself. Simply, she couldn’t walk because of two recent failed knee surgeries and her small apartment did not lend itself to the use of a wheelchair. Though she really needed intense physical therapy in the setting of a skilled nursing facility, as a Medicare beneficiary, she had already exhausted those benefits and was no longer eligible. When she fell she fractured her mid femur that required surgery on her leg and the placement of a plate and screws. Following her brief hospital stay, she was admitted to the nursing wearing a long brace on the leg and with the order to the staff that they monitor the leg to prevent wound infections and pressure sores. Over the course of the next 14 days the leg was not adequately checked and she developed an infection that eventually led to gangrene requiring amputation of the leg above the knee.
At the time of my client’s admission to the facility she was presented with an “Admission Agreement” that she was told required her signature to gain admission to the nursing home. The document was filled with considerable legalize and boilerplate phrases, not the least of which included an agreement appended to the “Admission Agreement” to enter into mediation and binding arbitration to resolve any grievance or complaint that she might have against the nursing home. It was very neatly couched as a separate agreement, thus attempting to dispel the defense that its execution was required for my client to gain admission to the home. The problem is my client, given her precarious mental and emotional state, failed to appreciate much of what was placed before her. She was told there were some documents to sign, so she signed them. She believed that for her to become a resident she had to sign the documents placed before her. After all, was the nursing home there to help her in her time of need?
In the civil justice world arbitration and mediation agreements are not new to the ways in which parties resolve disputes. Mediation and arbitration provide avenues alternative to the courts to resolve disputes and are often used by parties to resolve conflicts where the cost of using the courts would be considerable and the result unpredictable. Whereas a trial could cost several thousand dollars and last several weeks with an unpredictable result that might drag on for years on appeal, the costs of arbitration and mediation is far less with more predictable results.
Nothing prohibits Iowa nursing homes from entering into binding arbitration agreements with their residents. Since the principles of contract law apply, the validity of such agreements generally depend upon the competency of the resident at the time of execution and whether they understood the nature and consequences of their actions. While such agreements generally derogate the rights of the elderly, what makes them particularly egregious is that they purport to bind the resident to submit to binding arbitration or mediation of cases or controversies that did not exist at the time of the agreement. In the case of my client, I doubt that she could anticipate that at the time of signing the agreement for binding arbitration she would lose her leg due to the neglect of the staff.
Authored by Tom Slater, Attorney with Slater & Norris Law Firm.