Nursing home abuse, as readers of the Tennessee Law Blog know, is a too-common tragedy in our great country and has its source in nursing homes neglecting not just their patients but their staff and quality of service. The greatest deterrent to nursing home abuse has always been the threat that owners have felt of financial repercussions that a nursing home’s abuse or negligent will bring if pursued by a personal injury attorney. Tennessee nursing home regulators, underfunded and understaffed, cannot provide the security that fear of an experienced nursing home abuse lawyer brings.
Unfortunately, many nursing homes have found a way of avoiding lawsuits, not by improving the quality of elderly care, but by forcing residents to sign arbitration provisions. These provisions, often part of hundreds of pages of its fine print sorted through and signed to admit a loved one to Tennessee nursing home care, forces the resident to settle disputes about abuse, malpractice, and negligence in private arbitration.
This means a nursing home’s negligent or abusive acts will not go to Tennessee court where they will be heard by a judge or compassionate jurors but by a private judge, often a lawyer paid by the nursing home. Not only does this removes the financial incentive and fear of a nursing home abuse lawsuit but, to make matters worse, these “impartial” arbitrators, who earn money by repeat business from the nursing home, have the financial incentive to side with the Tennessee nursing home in arbitration matters. Additionally, costs of arbitration, including attorney’s fees, are often born by the family as there is not the financial incentive for personal injury lawyers to take the case as recoveries are below what jurors will award.
As a nursing home abuse attorney who hears the horrors of too many Tennessee long-term care facilities, I wholeheartedly support our United State Congress to move forward with the Fairness in Nursing Home Arbitration Act, S. 2838 and H.R. 6126.
This Fairness in Nursing Home Arbitration Act, if passed, will allow families, not the nursing homes, to choose freely whether they want to arbitrate or bring the case to an open court of law. This bill further invalidates those who have unwitting or by nursing home pressure any mandatory arbitration provisions of a nursing home or assisted living organization.
Government studies show that 20% of nursing homes are negligent to a degree that puts nursing home residents at risk for serious injury or death. Working with those injured in Tennessee nursing homes, this number seems low. Perhaps this is because of arbitration, which is often held behind closed doors. Arbitration decisions are rarely published and this further hides Tennessee cases of abuse and neglect.
By removing the right to sue in public court, nursing homes have swept instances of abuse under the rug. The Fairness in Nursing Home Arbitration Act will allow Tennessee families to know if and when a nursing home is providing inadequate or abuse care. Furthermore, it will ensure abused and neglected nursing home residents their civil right to a hearing as well as the care they deserve.
After years of limiting the rights of our elderly who have been abused in Tennessee nursing homes, it is time we empower our elderly Tennesseans with their full rights under the law. These rights include the right to make public abuse and acts of wrongness against oneself. These rights include the right to fair and safe treatment. These rights include the right to sue.