Posted October 21, 2016 | PA Nursing Home News
A new rule recently implemented by the Department of Health and Human Services will make it easier for the victims of nursing home abuse and neglect to have access to the courts in personal injury and wrongful death lawsuits. Philadelphia nursing home abuse lawyer Brent Wieand explains how the new rule is a step in the right direction for nursing home residents in Pennsylvania and New Jersey.
Thanks to new regulations mandated by the Centers for Medicare & Medicaid Services, a federal agency within the Department of Health and Human Services, nursing homes that receive federal funding will no longer be permitted to force elder abuse victims to resolve legal disputes through arbitration. As a consequence, victims of nursing home malpractice and their loved ones’ right to a jury trial will be protected. By revising existing requirements for nursing homes that receive government funding, the rule, which will take effect on November 28, 2016, gives victims and their families a fairer shot at getting justice.
Prior to the implementation of the new rule, nursing home residents were frequently forced to arbitrate claims. Mandatory pre-dispute arbitration clauses were placed in most nursing home admission agreements. Newly admitted residents and their families members would sign these agreements without knowing or understanding the repercussions.
The arbitration process, in many ways, is less fair to injury victims than litigation in court. Pre-dispute arbitration clauses forces victims to give up their right to a jury trial and instead, use a dispute resolution process. Arbitration often limits necessary discovery needed to prove their case. Moreover, private arbitrators who are paid thousands of dollars to decide these cases are less likely to give a fair award to a victim, knowing that if they do, they will be unlikely to be selected by the nursing home for future arbitrations.
Another drawback of the arbitration process is that it prevents prospective residents from learning about nursing home safety violations, some of which are quite extreme. This is because arbitration is not public forum like a jury trial.
Where litigation is transparent, arbitration is opaque; and if the result is unfair to the victim, as is frequently the case in matters involving nursing homes, it is almost never able to be appealed. Arbitration is preferred by nursing homes, but for the victims of misconduct, there is virtually no legal, financial, or practical benefit to this process.
It’s disappointing but unsurprising that the nursing home industry has voiced concerns about the legitimacy of the new rule. According to president and chief executive of the American Health Care Association Mark Parkinson, the updated requirements “clearly exceed” the scope of the Department of Health and Human Services’ authority, and are “wholly unnecessary to protect residents’ health and safety.”
However, the statistics on nursing home abuse – which are widely understood to underreport the true scope of the problem, largely due to residents’ fear of speaking out against mistreatment – paint a different picture.
According to a study by the Special Investigations Division of the House Government Reform Committee, “5,283 nursing homes – almost one out of every three U.S. nursing homes – were cited for an abuse violation in the two-year period from January 1, 1999, through January 1, 2001.” In more than 1,600 – just over 30% of the nursing homes cited – the violations were described as being “serious enough to cause actual harm to residents or to place the residents in immediate jeopardy of death or serious injury.”
Though a major legal victory for residents who, unfortunately, will fall prey to abuse in the future, it’s important to emphasize that the rule does not apply retroactively. In other words, only future admissions will be subject to the new requirements.
If you suspect that your mother, father, or grandparent was abused or neglected at his or her nursing home, you are urged to consult with a nursing home neglect attorney immediately, even if you aren’t absolutely certain whether abuse or neglect has occurred. By acting swiftly, you could help get justice for a loved one suffering further physical abuse, nursing home sexual abuse, or nursing home financial exploitation. You could even prevent the tragedy of a nursing home wrongful death.
Warning signs and types of accidents that indicate your loved one may be suffering abuse at a long-term care facility include:
Philadelphia wrongful death attorney Brent Wieand has extensive experience helping nursing home abuse victims and their family members fight for justice and financial compensation. To talk about your parent or grandparent’s situation in a free and completely confidential legal consultation, call the Wieand Law Firm, LLC at (877) 654-3887 as soon as possible.
*Disclaimer: This article is for informational purposes and is not legal advice. The Wieand Law Firm, LLC is based in Philadelphia, PA, and proud to serve clients throughout Pennsylvania and New Jersey.*