Mother dies in nursing home: case goes to compulsory arbitration because son was her healthcare agent?

I would like to share another story from the New York Times series on compulsory consumer arbitration. In this case, Elizabeth Barrow, an active 100 year old resident was killed by her roommate. The roommate had a history of violent confrontation, the most recent involved her. The resident was charged with murder but was found not competent to stand trial. For six years the son has been trying to hold the nursing home accountable for their failure to address the threat of this roommate. He felt their action was like leaving a gun on a table with a toddler. Six years later he may finally have a chance to have the matter reviewed in court.

As is common in these cases the son found out that part of the pile of papers he signed on her admission to the nursing home was a compulsory arbitration agreement. He took the case to arbitration. The arbitrator had hundreds of cases with the nursing home law firm. He found in the favor of the nursing home by checking the line that the nursing home was “not negligent.” There was no explanation.

According to the Times article this kind of secretive proceeding shields the nursing home from public scrutiny. State officials, who oversee nursing homes, “ in 16 states and the District of Columbia urged the federal government to deny Medicaid and Medicare money to nursing homes that use the clauses.”

While almost all courts have “rubber stamped” arbitration requirements, the Barrow case may have a different outcome. It turns out that the son was his mother’s healthcare agent. Under that power he could make medical decisions, but the court will rule on whether that includes authority to agree to arbitrate wrongful death cases.

The message from the Times series is somber: “Examining how clauses buried in tens of millions of contracts have deprived Americans of one of their most fundamental constitutional rights: their day in court.” Read the article here compulsory nursing home arbitration

On a more mundane note, this article raises the point that powers of attorney merely mean what they say and nothing more. A healthcare power of attorney is not a roving authority to handle anything and everything that may arise. The authority is limited to the identified medical decisions and nothing more.

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