Martinez pushes nursing-home patients' right to sue
By Susan Jaffe
6/19/2008 © Florida Health News
WASHINGTON, D. C. – Frail, elderly people entering a nursing home shouldn’t be forced or tricked into signing away their legal right to sue if they are later mistreated, Sen. Mel Martinez said Wednesday at a hearing on a bill that would ensure their access to the courts.
The Orlando Republican offered a glimpse into his motivation for sponsoring “The Fairness in Nursing Home Arbitration Act.” He said that when his father entered a nursing home, “I remember signing a lot of stuff, and frankly, as I’m sitting here, I’m wondering, did I sign an arbitration agreement? I don’t know.”
Martinez told the joint hearing of the Senate Judiciary Committee and Special Committee on Aging that he moved his father out of the facility within a week. He didn’t offer the name of the nursing home or other details, but commented, “I was appalled.”
Co-sponsored by Martinez and Wisconsin Democrat Herb Kohl, the bill would prohibit nursing homes from requiring incoming patients to sign an arbitration agreement as a condition of admission. It would make arbitration an option that residents could choose later, if they have a complaint, but would preserve their right to sue. Democrats Patrick Leahy of Vermont and Russ Feingold of Wisconsin are also sponsors.
The bill is supported by the National Citizens’ Coalition for Nursing Home Reform, AARP, the Alzheimer’s Association, and other advocates for nursing home residents. Nine members of Congress, including Miami Republican Ileana Ros-Lehtinen, have sponsored a similar bill in the U.S. House of Representatives.
The senators also heard from David Kurth from Burlington, Wisc., who said his father died in a nursing home after suffering a broken leg there during physical therapy and developing a blood infection caused by 13 untreated bedsores. Kurth said that state prosecutors charged a nurse with criminal neglect and that she was later convicted. But his family is unable to sue the nursing home because his mother signed an arbitration clause at the administrators’ instructions.
“How can anyone in good conscience argue that it should be perfectly legal to trick frail, elderly, infirm senior citizens experiencing the most stressful time in their lives into waiving their legal rights?” Kurth asked. “Please don’t let my father’s story be allowed to happen to another innocent American.”
Among those who testified against the bill was Kelley Rice-Schild, who runs a 60-bed Miami nursing home. She told the senators that applicants can cross out the arbitration provision before signing admission documents or go to a different facility if the one they’ve chosen insists on arbitration. Rice-Schild represented the American Health Care Association, as a past president of its Florida chapter.
Under questioning, Rice-Schild conceded that in the past two years only 4 or 5 of about 200 residents of her facility, Floridean Nursing and Rehabilitation Center, had deleted the arbitration provision of the admission documents. She estimated that about 10 percent nationwide do so. Losing a single lawsuit could force a nursing home to shut down, she said. Arbitration offers a quicker resolution and less expense for attorneys' fees.
She told senators that an insurance policy sufficient to protect against a major damage award is unaffordable, even for a nursing home like hers, which she said has a long “history of providing nothing but the highest level of quality care.”
Correction: Floridean Nursing Home and Rehabilitation Center in Miami provided all required information for federal care-quality measures and has cleared up deficiencies in patient care cited by a survey team. The original version of this article, published on June 19, was incorrect on these points, in part through a misreading of the Nursing Home Compare Web site and in part because some information on the site was out of date.
Contact Florida Health News Washington correspondent Susan Jaffe at Susan.Jaffe@FloridaHealthNews.org.
