As the nation’s courts wrestle with rules for nursing home arbitration agreements, one Virginia lawyer says he’s making arbitration work for his clients in nursing home cases.
Not all his colleagues are on board, however.
The issue is a familiar one for attorneys on both sides of nursing home neglect litigation.
Nursing homes for years have sought to steer the emotionally fraught cases to private forums with dispassionate decision makers. Lawyers for patients and their families prefer to connect with a sympathetic jury.
Ban on hold
A major rules change suddenly appeared last fall. The Obama administration surprised many when it announced in September that the government would no longer pay for Medicare and Medicaid nursing home patients if a home used pre-dispute binding arbitration agreements.
The nursing home industry wasted no time asking a court to overturn the ban. A federal judge in Mississippi granted a preliminary injunction on Nov. 7. The injunction is now before the 5th U.S. Circuit Court of Appeals in New Orleans.
The future is hard to predict. Regardless of the appeals court ruling, the new presidential administration could take a different tack on the arbitration issue.
In a separate case, meanwhile, the U.S. Supreme Court is set to consider whether Kentucky justices went too far in declaring that certain nursing home pre-dispute arbitration agreements violated a constitutional right to a jury trial.
The U.S. Chamber of Commerce added its voice to that discussion with a brief extolling the speed and efficiency of arbitration.
Survive and thrive
The U.S. Chamber is not altogether wrong, one plaintiff’s lawyer suggests.
With uncertainty about the prospect of a revived arbitration ban, Appomattox lawyer Robert W. Carter Jr. says nursing home trial lawyers can adapt and thrive in a world of binding arbitration.
Carter said he recently scored a pair of arbitration awards in excess of $1 million.
One was a death case with less than $20,000 in medical expenses. In another case, a nursing home medical director had documented that a sacral pressure ulcer was “unavoidable.”
“Arbitration gets a bad rap when it deserves a bad rap. And that is when it is not consensual,” Carter said.
“There has been a lot of hostility to nursing home arbitration provisions and understandably so, but if you’re compelled to go to arbitration or elect to go to arbitration, embrace the process,” Carter urged.
He cautions colleagues against a feeling that the deck has been stacked.
“I think a lot of people sometimes feel resigned to arbitration and allow that to play itself out in the attitude of litigation, in the attitude of preparation and in the attitude of presentation.
Recognizing that an arbitrator’s time is limited, a lawyer should focus on preparing a succinct and understandable case, Carter said. Arbitrators are almost always experienced judges and they quickly cut to the key issues, he said.
“You should … do your best to make the decision as easy as possible by presenting evidence in the most user friendly way possible,” Carter said.
Among the nursing home plaintiffs’ bar, Carter may be a lonely voice calling for acceptance of arbitration agreements.
“I fight every one of them. I don’t want to try my case in a non-jury atmosphere,” said Carlton F. Bennett of Virginia Beach.
Bennett’s favorite weapon is a provision of the Virginia Medical Malpractice Act requiring a 60-day withdrawal window for pre-dispute arbitration contracts. The 60-day clock starts on the termination of health care.
“They never word them the right way,” Bennet said of nursing home arbitration contracts.
He cited the 2010 ruling of Norfolk Circuit Judge John R. Doyle III refusing to enforce an arbitration agreement signed by a sister who had no authority to limit the patient’s legal rights.
Bennett said he has yet to have to accept forced arbitration in a nursing home case.
Lauren Ellerman of Roanoke, who chairs the Long-Term Care Litigation Section of the Virginia Trial Lawyers Association, says – for a client – the personal and emotional value of a jury trial can outweigh an arbitration session, even with good financial results.
“I think the process of adjudicating in front of a local judge at the local courthouse has much more impact to a family than a conference room with a guy, or a gal, in a suit,” Ellerman said.
A family experiencing a nursing home’s failure to properly care for a loved one often demands more than money. The family seeks accountability and vindication, she said.
“I have gotten to the point where I don’t think a case is just about results. It’s something much more,” she said.