nursing home neglect

Family of elderly man who died of neglect speaks out about forced arbitration

Evan’s father died with an oozing bedsore, about the size of a fist. He hadn’t had any food or liquid for 4 or 5 days.
Coluccio_Law_Nursing_Home_Neglect_Forced_Arbitration

Evan wanted to file suit against the nursing home for the neglect that caused his father’s death. He concluded that a jury trial couldn’t change what happened to his family: but it would send a message to nursing homes that abuse and neglect will not be tolerated.

The nursing home company informed Evan Press that he had no right to file a lawsuit for the wrongful death of his father.

The contract that they had used to admit his father to the facility had an arbitration clause.

Arbitration clause: you agree to give up your Constitutional right to trial, and instead submit any claims against the company to an arbitrator, who is chosen by the company, and paid by the company.

Now the nursing home is suing Evan Press, for attempting to break the arbitration clause.

Just another way to limit consequences

Nursing home companies that use contracts with arbitration clauses usually require a patient or representative to sign this contract before admittance.

Companies claim that patients aren’t giving up any rights or privileges when they sign these contracts— this is their explanation, as they ask the elderly resident to waive his Constitutional rights.

As arbitration has increasingly replaced court as the forum for dispute resolution, the amount of money recovered by abuse victims and their families has decreased—even as complaints about poor treatment have risen.

– Based on study done by nursing home industry itself

Forced arbitration doesn’t benefit consumers. It’s really expensive: attorney’s fees aren’t covered, and the company can force you to travel to wherever they choose to hold the arbitration, which is often an incredible inconvenience.

Plus, you can’t appeal a decision from a binding arbitration. If you don’t agree with an arbitrator’s decision, there is no next step.

And there is no public record of the arbitration meeting, as there is with a jury trial.

For families like Evan’s, there is limited and unjust recourse for the unnecessary death of a loved one.

 

LGBT elderly face higher risk of abuse and neglect

Many elderly people who identify as gay, lesbian, bisexual or transgendered are more likely to be abused or neglected.

For generations of LGBT who lived through decades of discrimination, this is the final indignity.

Research compiled by the National Center on Elder Abuse foundhttp://www.ncea.aoa.gov/images/Logos/ncea_logo.gif:

  • 29% of the LGBT elders surveyed had actually been physically attacked;
  • 65% reported verbal abuse, threats of violence, sexual assault, and discrimination, and other victimization; and
  • 8% had been abused or neglected by homophobic caretakers.
  • LGBT are more likely than heterosexual elders to live alone – and social isolation is a big risk factor for abuse; and
  • They are also less likely to seek help for abuse.

The data is comparatively limited, and compiled from the few peer-reviewed studies on the elderly LGBT community (which also speaks to the problem of discrimination).

However, it’s clear that more effort needs to be made to address and prevent elder abuse in the LGBT community.

Many LGBT elders lived with stigmatization for much of their lives—we owe them dignity and protection in their golden years.

Everybody counts: one big problem in death claims involving the elderly

Imagine that you’re driving home from work. Coming up to a red light, you see an elderly man step off the curb at the intersection. The car next to you doesn’t see him, and turns right – directly into him.

You, being a good citizen, call 9-1-1.

The operator tells you that all of the ambulances are busy with more valuable people. You call the police: they won’t come because a young person got in an accident down the street, and well, it’s more important that they tend to him. You take the elderly man to the hospital yourself, but the ER doctor won’t see him, since he’s going to die soon anyhow.

Sounds crazy, right?

A little legal background:

When an elderly person dies as a result of nursing home neglect, their family can file a lawsuit. This is called a “wrongful death” claim.

What most families aren’t prepared for: the claims adjusters and defense attorneys arguing that the death of their parent, grandparent or sibling has little value, since they were going to die soon anyhow.

My response to this is always the same: either everybody counts or nobody counts.

Outside of litigation, no one rates the value of people’s lives by age.

Here, we are talking about the death of an elderly loved one. Someone that we understood had only a short time to live. Someone that we understood was not going to be with us for that much longer.

Regardless of the short time that our loved one may have had with us, when they are wrongfully taken from us, there must be an appropriate accounting for the injury, abuse or neglect that took them too soon.

The life was shortened, regardless of how much or little it may have been shortened.

It may have been just a few more holidays with the family, just one more wedding, just a birthday party. Those of us who have lost a close relative would give a lot for one more day.

We can’t allow lawyers for negligent nursing homes to diminish the value of our memories and experiences with our loved ones.

 

This post was adapted from nursing home abuse attorney Kevin Coluccio’s article Everybody counts: Death of our older clients, originally published in Trial News, February 2014, for the Washington State Association for Justice trial lawyers.

About Kevin

Kevin Coluccio was recently named one of the Top 10 Super Lawyers in Washington State. He has long history of successful elder abuse/neglect cases and has a stellar reputation for getting results for his injury clients in serious car crashes, pedestrian accidents, trucking accidents, maritime claims, and asbestos injury cases.