As a Pennsylvania nursing home lawyer, I was interested to see a trial court decision in Kentucky that could be bad news for nursing home residents in that state. In Abell v. Bardstown Medical Investors, Inc., Christine Abell sued a nursing home where she had been a resident, Life Care Center of Bardstown, for gross negligence, intentional and wanton conduct and disregard for her safety, stemming from alleged denial of care and mistreatment. The home moved to dismiss the case because Abell had signed an arbitration agreement on admission. Abell opposed that motion, saying the contract was not enforceable because she had been mentally incapacitated when signing it. She also argued that the contract was unconscionable and therefore unenforceable.
After a bad fall, Abell, 74, went to the hospital with a vertebral fracture. At that time, she lived in an “independent living facility.” After three weeks in the hospital, she was discharged to the nursing home. When she was admitted, a nursing home employee noted that Abell suffered from a major mental disorder and requested a mental health screening. There was no indication that Abell was generally of below-average intelligence or impaired in another way. The screening found that Abell had not previously been treated for a mental health problem and suggested that any problem she displayed could be related to an infection. Directly after the screening, she was given a total of 37 intake papers to sign, including the arbitration agreement.
Abell argued that the arbitration contract should not be enforced because she was physically and mentally compromised when she arrived at the home; and because it was just one of many contracts in a large stack of paperwork. The court rejected this idea. The arbitration contract was not procedurally unconscionable, it said, because it was not intentionally unclear about its meaning and consequences. The court also dismissed Abell’s argument that she didn’t have the mental capacity to sign contracts when she was admitted. Under Kentucky law, sickness and distress are not adequate to create mental incapacity; Abell had to show that she did not and could not understand what she was signing. The record doesn’t show any diagnosis of mental illness or impairment, the court wrote. Furthermore, there was no such diagnosis after she was admitted, and the screening said she did not have a serious problem. Thus, the court dismissed the case and granted the motion to compel arbitration.
As a Philadelphia injury lawyer, I would be interested to know what Abell’s major mental disorder was, if it was not any kind of impairment. Arbitration agreements are an ongoing issue in nursing homes, in part for reasons similar to the ones raised in this case. Older people who are candidates for nursing homes are often sick or suffering from mental problems, which makes large stacks of paperwork like the one presented to Abell legally troublesome. Furthermore, an arbitration agreement makes it more expensive and difficult to hold homes responsible for Pennsylvania nursing home abuse, and less likely that the case will get media attention and warn others away from bad homes. As a Philadelphia medical malpractice lawyer, I urge clients to carefully consider everything they sign before entering a home and ask as many questions as they like — because the patient is, after all, the client.
If your family has suffered a death or a serious illness you believe was caused by negligence in a nursing home, Rosenbaum & Associates can help. For a free evaluation of your case, call us at 1-800-7-LEGAL-7 or send us an email today.
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