Nursing facility residents are highly vulnerable to abuse and neglect because they are dependent on others to perform activities of daily living, and they are often isolated from their social networks. In 2014, 44% of nursing facility residents surveyed said that they had personally been abused, 95% said that they had been neglected or had witnessed neglect of another resident.
Forcing next of kin to use confidential arbitration prevents the public from accessing critical information about the quality of care – or lack thereof – provided in nursing facilities. Maintaining the right of beneficiaries to publicly litigate disputes when a loved one has died at the hands of a nursing facility is critical to filling the void left by a lack of enforcement activity. Litigation is a vital tool for residents and their families to hold nursing facilities accountable for abuse and neglect.
The right to bring a claim in a public court of law is essential to maintaining transparency about what occurs in nursing facilities.
CPR recently filed an amicus brief on behalf of AARP and the Massachusetts Elder Law Attorneys in GGNSC Chestnut Hill v. Schrader, an appeal to the Massachusetts Supreme Judicial Court that challenges mandatory arbitration agreements in wrongful death cases. Most nursing facilities require that new residents sign an arbitration agreement as condition for admission. This agreement requires that any legal claim against the facility, including claims alleging abuse, neglect or death, cannot be litigated in court, but instead, must be resolved through arbitration. The process is biased in favor of the facility, limited in terms of damages or relief, and usually subject to confidentiality or non-disclosure clauses. As a result, the facts and outcomes of these claims are never made public. CPR’s brief argues that arbitration agreements should not prevent a nursing facility resident’s surviving relatives from bringing a wrongful death case in state court.
You can read the full brief here.