Forced Nursing Home Abuse Lawsuit Arbitration Rejected by West Virginia Supreme Court

The Supreme Court of Appeals in West Virginia has rejected a plea concerning forced arbitration in <"">nursing home abuse lawsuits, calling these clauses in nursing home agreements unconscionable, said The American Association for Justice.

The high court found that the Federal Arbitration Act preempts a state law providing that arbitration clauses in nursing home-resident contracts are null and void; however, the court ruled that “Congress did not intend for arbitration agreements, adopted prior to an occurrence of negligence that results in a personal injury or wrongful death” to be covered by the act, The American Association for Justice reported.

Nursing home abuse spans indignities against these vulnerable members of society on all levels: Physical, emotional, chemical, and sexual. Neglect and even workers who have abused residents as part of pranks against each other are commonplace.

The elderly are among our most fragile citizens and, often, we have no choice but to place our older relatives in the care of others. Sadly, reports of nursing home abuse are continually rising as are an increase in family-installed nanny cams catching nursing home workers abusing residents.

The court observed nursing home contracts differ from other commercial contracts in that, “people entering a nursing home have to sign admissions contracts in the midst of a crisis, without time to comparison shop or to negotiate the best service and price combination,” said the court in its opinion. The court added, “In such an environment, it is common that residents or their family members rarely know that the admission contract contains provisions that go far beyond the medical care and other services the facility promises (or is expected) to provide and that, instead, have serious implications for their legal and constitutional rights,” according to The American Association for Justice.

The ruling now enables cases in that state to be heard outside of the closed-door arbitration environment, a process many have long considered biased in favor of the facilities and against residents and their families.

Unlike other contract situations, these contracts do not typically involve savvy corporate representatives negotiating deals and coming to agreements in which all parties are cognizant of the outcomes. In the wake of increased arbitration clauses being included in nursing home admissions contracts, this ruling is a boon to senior residents and their families and moves some accountability back into the hands of nursing home operators.

In addition to the ongoing reports of abuse to the elderly are the peripheral issues of fraud, neglect, understaffing, and staffing of unqualified employees, which further abuse residents. For instance, we recently wrote that Kentucky is seeking more stringent criminal checks for nursing home workers and that a Kentucky “care center,” part of a nursing home chain, was accused in a U.S. Justice Department lawsuit of billing Medicare and Medicaid for $16 million of “worthless” services. The lawsuit was filed against Villaspring Health Care Center, the lead defendant. Villaspring is wholly owned by Carespring Health Care Management, a co-defendant; Barry N. Bortz, the final defendant, is majority owner and CEO of both companies. According to the federal complaint, Villaspring is described as “grossly deficient” and abusive and the complaint alleges fraud, unjust enrichment, and false claims and states, in part: “The defendants have failed to provide adequate care for the medically fragile and vulnerable elderly

residents of the Villaspring nursing facility, resulting in egregious harm and even death to some of those residents,” Courthouse News reported.

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