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Evangelical Lutheran Good Samaritan Society v. Kolesar – Nursing Home Arbitration Agreements

Increasingly, nursing homes and long-term care facilities are seeking ways to shield themselves from litigation stemming from neglect, abuse or negligence by shoving arbitration agreements in front of new patients.
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Boston nursing home neglect lawyers know that in most cases, these agreements are not a mandatory element of acceptance into the facility, and they serve only to diminish the rights of those who have been injured as a result of the nursing home staff’s actions or inaction.

That doesn’t necessarily mean those whose disputes are handled by an arbitrator will be unsuccessful. However, the process tends to be skewed in favor of the facility, which is why we will often first assess whether there is evidence the arbitration agreement was unconscionable. In nursing home abuse cases, this usually is a result of the agreement being signed by someone too ill to make those kinds of decisions on their own, or by someone signing an agreement on the patient’s behalf when he or she did not have the legal authority to do so.

We recently wrote about the case of Walker v. Collyer, in which the Massachusetts Court of Appeals ruled a non-signatory on the contract couldn’t be forced into nursing home arbitration.

Similar cases are cropping up all over the country.

In the recent case of Evangelical Lutheran Good Samaritan Society v. Kolesar, the Arkansas Supreme Court was tasked with deciding whether a complaint regarding injuries sustained by a female nursing home resident would be handled in court or by an arbitrator.

The plaintiff, the woman’s husband, contended the arbitration agreement was not valid for a number of reasons. Those included that the agreement itself was unconscionable and that he lacked the authority to enter into the agreement on his wife’s behalf (his signature was the one on the form).

The nursing home denied the allegations.

However, following two hearings on the matter, the circuit court denied the motion to compel arbitration.

The nursing home appealed the ruling, but the court found the appeal to be untimely, a decision backed by the state supreme court. Further, the nursing home failed to appeal every basis on which the circuit court had denied its motion to compel arbitration, and therefore those findings were summarily affirmed. That meant that even if the court had ruled in favor of the defendant, there was still ample grounds on which to refuse to force the case to go before an arbitrator.

There are sometimes other grounds on which a nursing home arbitration agreement can be struck. For example, if the named arbitrator refuses to arbitrate such cases (the American Arbitration Association, named in some contracts, usually declines claims against health care facilities), the agreement could be voided. Other contracts have been voided when the corporation allowed litigation for a period and then, when it wasn’t going well, decided to invoke the arbitration rights. This type of “gamemanship” is not rewarded by the courts.

If you are a victim of Boston nursing home injuries, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.

Additional Resources:
Evangelical Lutheran Good Samaritan Society v. Kolesar, June 19, 2014, Arkansas Supreme Court
More Blog Entries:
Filepp v. Boston Gas Company – Timely Notice of Injury Crucial, June 8, 2014, Boston Personal Injury Lawyer Blog