One of the trends in nursing home litigation has been the inclusion of mandatory arbitration agreements in admission paperwork. By signing an arbitration agreement (usually unknowingly), nursing home patients may surrender their opportunity to recover money for an injury via a traditional jury trial. Alternatively, injured parties must present their grievances before an individual or group of arbitrators.
The arbitration agreements set forth the terms of the arbitration and how many arbitrators will hear the matter. Generally, in the case of a single arbitrator, the individual is selected by the nursing home. In the case of an arbitration panel (usually three people) both the nursing home and the injured party may choose an arbitrator, with a third arbitrator selected by the appointed arbitrators.
Because the ability to award money for an injury or wrongful death is taken out of the hands of jurors and into the power of individuals who may be influenced by industry power– mandatory arbitrations are usually vigorously fought by injured parties.
Until recently, it was universally believed that an injured person stood little chance of receiving a fair recovery in an arbitration setting because many of the arbitrators had allegiance to large nursing home operators and other appointed arbitrators may be unfamiliar with issues that frequently arise in nursing home injury matters.
That was then, this is now.
Recently, a three-person arbitration panel recently awarded over $2.7 million in damages to the family of Voncil Sherrod who died in March, 2005 from complications related to gangrene and advanced pressure sores that developed during her admission to High Point Health Care and Rehabilitation Center in Tennessee.
In addition to High Point, damages were also sought from Mariner Health Care (the parent company), Mariner Health Care Management (the management company) and National Heritage Realty Company (the licensee). Ms. Sherrod’s estate claimed that all entities were guilty of: negligence, violation of the Tennessee Adult Protection Act (TAPA) and medical malpractice.
In making this substantial award, the arbitration panel obviously sent a message to the various nursing entities that they can no longer assume that taking a nursing home negligence matter away from a jury will protect them from liability. Also, notable was the large award for punitive damages against the facilities especially in light of the more modest awards for other claims.
The arbitration award is comprised of the following:
- $250,000 for TAPA violations
- $400,000 in attorneys fees for intentional, malicious or fraudulent misconduct resulting in TAPA violations
- $626,396.32 for medical malpractice
- $1,500,000 punitive damages
For laws related to Tennessee nursing homes, look here.
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