Things to Watch Out for When Admitting Your Loved One to a Nursing Home

By Ohio nursing home neglect and abuse attorney, Blake Dickson

The New York Times recently published a guest essay by Brendan Ballou. Mr. Ballou is a former federal prosecutor and the author of a forthcoming book called, "When Companies Run the Courts”.

The essay published in the New York Times was adapted from that book. In his essay, Mr. Ballou claims that America has a hidden justice system. In that hidden justice system, decisions are made in secret, and judges are often paid by the very companies they are supposed to judge. In any other system of justice, this would be called bribery. However, in this system, it's called "forced arbitration". Whether you realize it or not, you are likely affected by this system of forced arbitration.

We see forced arbitration in the context of nursing home cases. No other lawyer in the State Ohio has opposed forced arbitration in the context of a nursing home cases more often and more vigorously than I have. I am the only Plaintiff’s lawyer in the State of Ohio to have argued this issue before the Ohio Supreme Court. If you research cases involving forced arbitration in the context of nursing home cases you will find that many of the appellate court decision that deal with this issue are cases that I handled for my clients. We vigorously fight forced arbitration in every case where the Defendants pursue it. Fortunately, most Defendants no longer try and force the cases that we are handling to involuntary arbitration.

If someone you love has been neglected or abused in a nursing home, please call us at The Dickson Firm at 1 800 OHIO LAW as we would be happy to talk with you and help you in any way that we can.

What can you do to avoid forced arbitration in your nursing home case?

No one wants to have to sue a nursing home because no one wants their loved one to be injured or killed. Unfortunately we get calls every day from families whose loved one was neglected or abused in a nursing home. In many of those cases the Defendants try and force the case to involuntary arbitration. As indicated above, given our vigorous and very often successful opposition to these efforts the Defendants in our cases try and force fewer and fewer cases to arbitration.

If you are admitting someone you love into a nursing home or if you have recently admitted someone you love into a nursing home, you are likely confronted with a large packet of admission documents. Those documents probably seem like basic documents that you had to sign to admit your loved one to a nursing home. They may have dealt with things like the meals your loved one would receive. They may have had a form giving your consent to have your loved one photographed and that photograph used in promotional materials. There may have been paperwork about billing. There may have been other documents about your loved one's admission to the nursing home. You may have been offered hair care services. You may have been made aware of the availability of manicures for your loved one.

However, buried in many of these admission agreements is an arbitration clause.

Now, under the law, this arbitration clause is supposed to be separate. However, in many admission agreements, this arbitration clause is purposely buried within hundreds of pages of documents.

We recently handled a case where the nursing home resident herself was confronted with a 100 page admission agreement on an iPad. There is no indication that she ever signed the agreement. Her name appears in a font meant to look like cursive. The nursing home neglect this woman. Now they are trying to take away her right to a jury trial by forcing her to involuntary binding arbitration. What is the basis – an arbitration agreement where her name is typed in a cursive font. The nursing home has no proof that the resident ever saw the agreement much less signed it. But they are still trying to deprive her of her day in Court.

Why are these arbitration clauses so bad?

The reason that these arbitration clauses are so bad is that arbitration deprives your loved one the right to bring a lawsuit in court. Fortunately, the Ohio Supreme Court decided a case years ago in which it held that the nursing home could not force a wrongful death claim to arbitration. The reasoning is that if your loved one signs an arbitration clause, that does not bind his or her next of kin. A wrongful death claim belongs to the next of kin. When someone dies in a nursing home as a result of the substandard care in the nursing home, we are able to bring a lawsuit on behalf of each of the next of kin and recover for their mental anguish or emotional suffering and their loss of society, meaning their loss of the relationship with the decedent. Those claims belong to the next of kin and the Ohio Supreme Court has decided that a nursing home resident cannot bind his or her next of kin to an arbitration clause. This does not stop the nursing homes from trying to enforce these arbitration clauses in cases involving wrongful death.

What you need to understand is that if you or your loved one ultimately has a claim against the nursing home and you file a lawsuit in Court, the nursing home may file a motion to stay that case. They will ask the Court to permanently and forever stay your case and force your case to involuntary, binding arbitration. As Mr. Ballou talks about in his New York Times article, often the arbitrators are paid by the entity trying to force the case to arbitration. So in the nursing home context, often the arbitrators are paid by the nursing home.

Often the arbitrators are a part of the American Health Lawyers Association, which is a group of defense attorneys who represent nursing homes and hospitals and doctors when they are defendants in medical claims.

Understand that an arbitration clause is not a clause whereby if there is a dispute, you agree to informally negotiate or you agree to mediate the case. This is not an attempt at informal resolution. An arbitration clause is meant to forever stay your litigation and force your case to binding arbitration, usually using an arbitrator or arbitrators chosen by the nursing home or who belong to an organization chosen by the nursing home.

Arbitrations can be exorbitantly expensive. Some arbitration companies require a filing fee of $50,000.00 if you are filing a large claim. By contrast, when you file a claim in court, you usually pay a $100.00 filing fee. You do not have to pay the judge for his or her time. And so you can litigate your case all the way through a jury trial, and the court costs are nominal. When you have an arbitration, often you have up to three (3) arbitrators who each charge you for their time. If these arbitrators charge $300.00 an hour and they have to work on your case leading up to the arbitration, you can be charged $900.00 an hour for all three (3) of them to work on a motion or address a discovery issue. If they each spend three (3) hours reviewing a Motion and a Brief in Opposition and issuing a decision on the motion, the cost would be $2,700.00 for the panel to decide a single motion. In most cases that I handle we file multiple motions. If the arbitration takes three (3) days at eight (8) hours a day plus eight (8) to ten (10) hours of preparation, you are talking about thirty two (32) hours of time spent by all three arbitrators at a rate of $900.00 per hour for a total of $28,800.00. Assuming they had to rule on ten (10) motions or discovery disputes leading up to Arbitration the total cost would be $55,800.00. Even if the arbitration clause provides for the two (2) parties to split the cost, you are still stuck paying $27,900.00 for the arbitration as opposed to a $100.00 filing fee in court.

Why would the nursing homes agree to incur this cost?

The nursing homes agree to incur this cost because they know that the outcomes are universally better in arbitration than they are in litigation. As Mr. Ballou talks about in his article, in small claims courts, consumers win as often as 89% of the time. Reviewing cases in front of two (2) leading U.S. arbitration providers, consumer win just 21% and 33% of their cases.

Further, discovery is limited when it comes to arbitration. This is a huge disadvantage for the plaintiff in the case. If you are pursuing a claim against a nursing home, you are the plaintiff. You have the burden of proof. As a result, you need discovery.

In every Ohio nursing home case that we handle here at The Dickson Firm, L.L.C. we propound discovery requests. We send the nursing home a series of questions, known as interrogatories. We send the nursing home a series of requests for documents. We gather important documents. We invariably have to file one or more Motions to Compel against the nursing home, which the judge has to rule on. We often have to file a Motion to Show Cause asking the Court to hold one or more parties in contempt for refusing to comply with a Court Order. We have to issue subpoenas to take the deposition of witnesses. And if we go to trial, we have to issue trial subpoenas to compel people to come to trial.

Little of this is possible in arbitration. I was in an arbitration once and we were trying to depose a witness, and the arbitrator called the witness and the witness basically told the arbitrator that they were not coming to the deposition and there was nothing the arbitrator could do about it. A judge can hold a witness in contempt. A judge can grant a Motion to Compel against the nursing home. A judge can grant a Motion to Show Cause against the nursing home and force them to appear in court and show cause why they should not be held in contempt. A judge can hold a party in contempt. That can lead to a ruling against that party. That can lead to money sanctions. I recently received sanctions against a nursing home for refusing to produce discoverable documents in the amount of $83,000.00. Nursing homes often go to great lengths in litigation to hide important discovery. You need discovery in a nursing home case. The nursing homes know that in arbitration there is very limited discovery. The nursing homes know that arbitration is extremely expensive, which deters a lot of people from pursuing it. The nursing homes know that there is little to no discovery in arbitration, which benefits them greatly. And the nursing homes know that most of these arbitrations are conducted by people favorable to them. The arbitrators come from either organizations with which the nursing home has a long-standing relationship or organizations like the American Health Lawyers Association which is comprised exclusively of defense attorneys.

Nursing homes also know, that statistically, they fare much better in arbitration. They win more often, and when they lose, the results are much smaller for the plaintiff.

So, if you are admitting someone you love into a nursing home, scour the admission agreement for an arbitration clause. Ask the admission person if the admission paperwork contains an arbitration clause. Refuse to sign it.

If your loved one has been admitted to a nursing home in the last thirty (30) days, you probably have the right to revoke the arbitration clause. Even if you are past the initial thirty (30) days, find the admission documents, see if there is an arbitration clause, and if there is, send the nursing home a written communication, a letter or an e-mail or both, indicating that you are revoking your consent to arbitration. Even if you are past the time period for revocation specified in the agreement, if you revoke the agreement before a claim arises, you probably have at least a colorable argument that the arbitration clause is not enforceable.

If someone you love has been neglected or abused in a nursing home, please call us at The Dickson Firm at 1 800 OHIO LAW as we would be happy to talk with you and help you in any way that we can.

Happy Mother's Day

By Ohio nursing home neglect and abuse attorney, Blake Dickson

On Mother's Day, many people visit their moms. A lot of moms reside in nursing homes. Some people see their mom on Mother's Day in a nursing home when they have not seen her for a while. Many people do not live in the same city as their mom. On a day like Mother's Day, they often travel so they can spend Mother's Day with their mom. Often, people who see their mom in a nursing home after not seeing her in person for a while, notice things that concern them.

What Should I Look For To Make Sure My Mom Is Receiving Good Care In The Nursing Home?

If you have not seen your mom in a while, and you are visiting her in a nursing home and you would like to make sure she is receiving good care, what are the things you should look for? How do you make sure she is receiving good care?

Talk with your mom. If your mom is coherent and she is able to tell you what is going on, make sure you talk with her. Also, make sure you take what she tells you seriously.

Tragically, we have had a number of cases where a nursing home resident has reported to their family that something is going on. The nursing home tells the family that the resident is demented or forgetful, and the complaints are ignored. Tragically, in many cases, it turns out that those complaints are accurate, and, at the same time, they are ignored.

If someone you love has been neglected or abused in a nursing home, please call us at The Dickson Firm, L.L.C. at 1-800-OHIO LAW, as we would be happy to talk with you and help you in any way that we can.

We handled a tragic case recently where a resident of an assisted living facility was sexually assaulted by an employee. The employee sexually assaulted three different residents at the assisted living facility. The facility told all three of the families that the person was demented and confused and did not know what they were talking about. It turns our that all three of those residents knew exactly what they were talking about, and they had in fact been assaulted. The truth finally came to light. The assailant was prosecuted and sentenced to prison. And we successfully sued the assisted living facility for civil damages on behalf of the resident who had been assaulted.

Take what your loved one tells you seriously. If they tell you something is going on, then make sure you look into it. Your loved one may be confused. Your loved one may be demented. Your loved one may have difficulty telling you what is happening. But there very well be truth to what they are telling you. Even if they are not explaining what is happening clearly, try and figure out what they are referring to.

Try to visit your loved one in the nursing home at all different times of the day. One of the best things you can do is to observe how your loved one is being cared for at all different times of the day. Come in the morning. What time do they get your loved one out of bed? Show up at 9:00 a.m. Your loved one should be up. Someone should have helped them with their morning routine. Someone should have helped them use the bathroom. Someone should have gotten them up and either given them a shower or a bed bath. Someone should have helped them comb their hair and brush their teeth and gotten them dressed for the day.

Observe your loved one during meal time. Visit when they receive their meals. Different residents have different needs. Does your loved one eat in the dining room? Does your loved one eat in their room? If your loved one is fed in their room, why is that? Why are they not in the dining room? Socializing with other residents is beneficial for your loved one. It helps with their cognitive function. It helps with their mood. No one wants to sit in their room alone all day. If your loved one needs assistance with their meals, are they getting it? We have had cases where a resident needs help eating, and the records clearly indicate that the staff is simply dropping the tray off in their room and leaving.

Nursing homes maintain Documentation Survey Reports, which document exactly what the aides do. The aides need to code the type of assistance that your loved one needs, and the type of assistance they are providing. Tragically, we often see cases where the person needs help with meals and they are not getting that help. Either they are just dropping the tray off and leaving, or they are dropping the tray off, setting it up, uncovering the food but still not helping the resident eat. Visit your loved one shortly after meals. Is the tray sitting in their room untouched? Is someone helping them?

Is your loved one losing weight. If you have not seen your mom for a while and you visit her on Mother's Day, how does she look? Has she lost weight? Ask the nursing home about that. Why is she losing weight? Nutrition and hydration and essential for a resident's health. Proper nutrition and proper hydration helps keep your loved one strong and alert and active. It helps them have the energy to get up and move around. It helps them avoid skin breakdown. Some residents become less and less mobile simply because they are not receiving enough nutrition or because they are dehydrated.

Often families assume that their loved one is disoriented or confused because of dementia or Alzheimer's, when in fact, the person simply is not receiving proper nutrition and hydration. Dehydration can promptly make anyone confused. Lack of nutrition can promptly make anyone confused. So make sure your loved one is being fed three meals a day. Make sure they are getting adequate nutrition. Make sure the nursing home is serving them foods that they like. Your loved one absolutely has the right to request food that they enjoy.

Does Your Loved One Have Any Visible Signs Of Injury?

How does your loved one look? Are they clean? Is their hair brushed? Are the men shaved? How is their breath? Do they have body odor? Do they have any bruises or cuts or skin breakdown? This may be an uncomfortable issue for a number of people, particularly if you are a son visiting his mother. You may not be comfortable examining her body from head to toe. Do you have a female relative who is more comfortable doing that? Can you ask the nurse or the aide to inspect your mom? One of the biggest things that allows neglect and abuse to continue is the fact that the family is unaware of it. Does your loved one have a bedsore? Often skin breakdown occurs in the coccyx or buttocks area. It is certainly not a typical thing for a son to examine his mother's coccyx or buttocks area. However, that is one of the most common areas where a bedsore occurs. So does mom have a bedsore? Again, is she able to tell you what is going on? Is she telling you that her butt hurts? If she is telling you that her butt hurts, why does it hurt? Does it hurt because she has got skin breakdown?

Does your mom or any loved one have any bruises? Tragically, we have handled numerous cases where residents are assaulted by staff and/or other residents. We have also handled numerous cases involving falls. If your loved one is falling, often there will be bruising. Often a resident has a number of falls that do not result in any particularly serious injuries. However, this is evidence of the fact that your loved one does not have an adequate care plan. A nursing home is obligated to figure out why they fall each time they fall and then to implement additional interventions to prevent future falls. If your loved one has had a fall, ask the facility to tell you why he or she fell. What was the cause of the fall? How are they addressing that cause? How are they addressing that cause for future falls? We have numerous cases where a resident has fallen a number of times and then finally they have suffered a fall that resulted in a serious injury like a fractured hip or a head injury leading to a brain bleed. Falls are one of the most serious issues for nursing home residents. Once a resident has a fall if they suffer a fracture, often they need surgery, which comes with it a series of risks. Often after surgery they are less mobile, which can lead to pneumonia and skin breakdown. It is imperative that the nursing home endeavor to prevent falls. The nursing home must treat fall prevention as a matter of life and death. If your loved one is at risk for falls, ask the nursing home what they are doing to prevent your loved one from falling.

Make sure someone visits your loved one in the nursing home in person as often as possible.

If you live out of town and you are unable to visit your loved one in person, make sure you have someone visit them in person on a regular basis. If you have relatives who do live in town, make sure they visit your loved one on a regular basis and report back to you. If you do not have relatives who live in town, make sure you ask friends to visit your loved one and report back to you. There is no substitute for seeing a nursing home resident in person. There is no substitute for going to the nursing home in person and witnessing the conditions at the nursing home. Nursing homes always promote themselves through online advertisements which contain pictures that make the facility look wonderful. Make sure that is true. Make sure the facility is actually a good facility that is taking good care of your loved one.

You should make sure that your loved one is seeing his or her doctor on a regular basis. You should talk with his or her doctor and make sure they do not have any concerns about your loved one's care.

You should also research the nursing home where your loved one is a resident. If you go to https://www.medicare.gov/care-compare/?redirect=true&providerType=NursingHome you can look up the nursing home and you can check the 5-star rating. You can check the Overall 5-star rating. You can check the 5-star rating for staffing. You can also check and see if the nursing home has received any federal fines in the recent past.

If the nursing home has been reported for abuse you will see a red hand.

If the nursing home has a history of problems with resident care you will see a yellow triangle.

Do Not Feel Guilty

Many people feel guilty for having to put their loved one in a nursing home. Many people, particularly on Mother's Day, feel badly if their loved one lives in a nursing home. This has always bothered me. People should not have to feel guilty for putting their loved one in a nursing home. The nursing home industry exists to provide care to people who can no longer care for themselves. It should not be a choice between providing your mom with good care, and putting her in a nursing home. You should be able to put your mother in a nursing home, and she should receive good care.

Make sure you choose the nursing home wisely - there are bad nursing homes. Use the medicare.gov website to find a nursing home that has high 5-star ratings. Do a Google search or artificial intelligence search about that nursing home. You can often find a great deal of information about that nursing home with a simple online search. See what other people have said about the nursing home. See what staff have said about the nursing home. Make sure you visit the nursing home before you admit your loved one to it. Make sure you visit the nursing home as often as possible once your loved one is a resident there so that you can observe firsthand the type of care that your loved one is receiving. As indicated above, if you live out of town, make sure you find someone to visit your loved one on a regular basis and check up on them.

We wish everyone a Happy Mother's Day.