The verdict of Marmet Health Care Center v. Brown was recently determined by the US Supreme Court; a ruling that will have grave, detrimental effects on the elderly, infirm, and mentally ill across the country.
The case began in West Virginia, where a few nursing homes came up with what Dr. Seuss would call a “wonderful, awful idea.” They would include a bit of fine print in their standard nursing home admittance forms that waived the rights of residents to sue the nursing home for any reason. Instead, any complaints would go to an arbitration board made up of a panel. That panel might consist of nursing home administrators, owners, and other professionals heavily invested in the financial success of the nursing homes.
It was a license to steal. Rather, it was a license to neglect. It was a license to hire incompetent and abusive staff and, of course, overwork the heck out of them. It was a license to allow residents to sit in soiled diapers. It was a license to stick dangerous, violent residents in the same room as weak, frail, helpless people. It was a license to fear no consequences.
The West Virginia Supreme Court objected. They ruled that the Federal Arbitration Act (FAA) was not binding in issues relating to nursing home abuse and neglect because “as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission/agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence.”
The FAA is a broad law passed in 1925 that regulates what kinds of agreements can be included in a contract, and when those agreements can be altered. The FAA applies in almost all contracts; however, if the arbitration heavily favors one party or the agreement is signed under duress, the FAA does not apply.
The West Virginia court cited the doctrine of unconscionability: because of an overall and gross imbalance, one-sidedness or lop-sidedness in a contract, a court may be justified in refusing to enforce the contract as written. The concept of unconscionability must be applied in a flexible manner, taking into consideration all of the facts and circumstances of a particular case.
To make a long story short, the West Virginia Supreme Court felt that it was unfair to force families into agreeing to terms at time when great duress is a given. Placing a loved one in a nursing home is always difficult. As an attorney who handles cases in nursing home abuse and neglect, I can assure you that no family who hasn’t had to encounter the brutal face of nursing home abuse or neglect has any true concept of just how prevalent it has become.
By overturning the West Virginia Supreme Court decision, the US Supreme Court is clearly coming down on the part of the nursing homes over the widespread suffering of the people inside them.
This decision is only the beginning. Without the fear of juries who, faced with the full ramifications of the abuse and neglect often recoil in horror and anger, nursing homes will only continue to provide a downward spiral of care.
Arbitration clauses are here to stay. The US Supreme Court has made certain of that. If, and when, you need to place a relative into a nursing home, it’s essential that you be wary of any document that strips your loved one of the right to have any grievances heard in a court of law.
