A Massachusetts state court is scheduled to hear a case on arbitration clauses in nursing home contracts. The clause is preventing Scott Barrow from seeking a wrongful death suit against the nursing home where his mother, Elizabeth Barrow, was allegedly killed by her roommate six years ago. The clause forces all disputes to be settled in private arbitration, and can be found in contracts throughout the United States.
The dispute is over whether or not a designated health care proxy, who is authorized to make decisions on the beneficiary’s behalf, can legally bind the beneficiary to arbitration.
More from the New York Times:
[Barrow] has been trying ever since to get back to court, and next month he will finally get that chance. A Massachusetts state court is scheduled to hear Mr. Barrow’s case against the home, which has evolved into much more than a lawsuit about one woman’s death. It has become a crucial test of a legal strategy to prevent nursing homes across the country from requiring their residents to go to arbitration, where there is no judge or jury and the proceedings are hidden from public scrutiny.
Arbitration clauses have proliferated over the last 10 years as companies have added them to tens of millions of contracts for things as diverse as cellphone service, credit cards and student loans. Nursing homes in particular have embraced the clauses, which are often buried in complex contracts that are difficult to navigate, especially for elderly people with dwindling mental acuity or their relatives, who can be emotionally vulnerable when admitting a parent to a home.
State regulators are concerned because the secretive nature of arbitration can obscure patterns of wrongdoing from prospective residents and their families. Recently, officials in 16 states and the District of Columbia urged the federal government to deny Medicaid and Medicare money to nursing homes that use the clauses. Between 2010 and 2014, hundreds of cases of elder abuse, neglect and wrongful death ended up in arbitration, according to an examination by The New York Times of 25,000 arbitration records and interviews with arbitrators, judges and plaintiffs.
Judges have consistently upheld the clauses, The Times found, regardless of whether the people signing them understood what they were forfeiting. It is the most basic principle of contract law: Once a contract is signed, judges have ruled, it is legally binding.
Mr. Barrow’s case is pivotal because, with the help of his lawyers, he has overcome an arbitration clause by using the fundamentals of contract law to fight back.
Laura Lundquist, 104, was charged with Elizabeth Barrow’s death but unable to stand trial due to her age.
Photo by Daniel Kulinski via Flickr CC License
