Illinois Injury and Mass Tort Lawyer Blog

In a recent case, a court decided that a resident’s estate could not be compelled to enter arbitration, even though the deceased resident’s daughter had signed an arbitration agreement on her behalf. When the resident was admitted to a nursing home, her daughter accepted a health care proxy designation on her mother’s behalf, but the mother never executed a durable power of attorney for her daughter. The daughter then signed the home’s admission agreement, which included an arbitration agreement. The arbitration agreement stated that the arbitration agreement was voluntary and that failing to sign the arbitration agreement would not affect a resident’s ability to stay at the facility.

The nursing home admission agreement defined a legal representative as a person who has authority to act on the resident’s behalf under independent legal authority, such as a guardian or a power of attorney. The mother was not competent at the time the documents were signed. The daughter signed the admission agreement as her mother’s “legal representative” and signed the arbitration agreement under the line designated for a “resident/representative signature.” The daughter signed the documents so that her mother could be admitted to the home.

After the mother died while in the care of the nursing home, the mother’s estate brought a claim against the nursing home, alleging that the home caused the mother injuries that resulted in her death. The nursing home responded by arguing that the case had to be resolved in arbitration, pointing to the arbitration agreement signed by the resident’s daughter. The trial court found that the mother was not competent at the time the admission agreement was signed and that the daughter signed as her legal representative, so the case had to be resolved in arbitration. The mother’s estate appealed.

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Americans are living longer today than in the past, which means that many families are forced to place a loved one under the care of a nursing home. Unfortunately, not all residents receive the care they deserve at nursing homes. Some residents are not sufficiently fed or cleaned, and some are subject to serious abuse, including starvation and sexual abuse. In addition, due to age and/or mental impairments, nursing home residents often are unable to report abuse.

Many nursing home cases result from negligent care of residents, but some cases arise from intentional abuse from staff. In cases in which a person acts with the intent to cause harmful or offensive contact with another person, and contact results, it constitutes battery. Assault also results in most cases, which arises from the person’s apprehension of imminent contact. In cases of intentional abuse from a nursing home staff member, assault and battery can often easily be established with the right evidence. However, it can be difficult to prove abuse in nursing home cases, because the abuse usually occurs outside the presence of independent witnesses, and residents are often developmentally impaired and cannot explain what occurred.

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Although concerns for nursing home residents often arise based on allegations of abuse by staff members, other residents can also be perpetrators of abuse. Of course, residents live together in one facility and will often interact, but a nursing home has an obligation to protect its patients—even from other residents.

The Nursing Home’s Duty to Prevent Abuse

Nursing homes have a duty to keep their residents safe and prevent abuse, including abuse from other residents. If one resident is being abusive towards other residents, then the resident should be controlled, and removed if necessary. There are also a number of ways nursing homes can help prevent abuse, for example by creating more private spaces for residents, improving lighting, ensuring proper staffing, and taking action when residents engage in abusive behaviors. If a nursing home fails to take an issue seriously, it may liable for injuries that could have been prevented.

All residents have the right to live in a safe environment. Mistreatment against residents can come in the form abuse, neglect, or exploitation. Abuse can include physical, mental, verbal, and sexual abuse. Neglect is the failure to provide proper care to a resident. Exploitation means the illegal or improper use of a resident’s money or belongings.

Federal nursing home regulations provide residents with certain rights, including the right to be free from abuse, neglect, and exploitation, to be treated with dignity and respect, and to have security of personal possessions. The facility is required to have policies and procedures that prohibit abuse, neglect, and exploitation, to investigate and report all allegations of abuse, and to protect residents from mistreatment.

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Never Events in Nursing Homes

Nursing home residents are at a particularly high risk of being victims of a never event, due to the lack of oversight present in most nursing homes. Unlike doctor’s offices or hospitals, nursing homes are not frequented by guests, and the residents often have limited contact with the outside world. This creates a situation in which there is little oversight, which allows for less-than-diligent staff members to cut corners when it comes to a resident’s care.

Perhaps the most common never events that occur in nursing homes are bed sores. A bed sore, also known as a pressure ulcer, is a skin condition that can develop, usually over a bony area, when too much consistent pressure is applied to the skin. Bed sores are most common among nursing home residents who are immobile. Nursing home staff should take extra precautions to ensure that immobile residents do not lie in the same position for hours at a time, and they should move or roll residents to prevent bed sores. Stage III and IV bed sores have been considered a never event by the Center for Medicare and Medicaid Services (CMS) for the past 11 years.

CMS is part of the Department of Health and Human Services and oversees two of the largest medical programs in the country, covering millions of Americans. One of the many functions that CMS plays is to help develop medical standards across the industry in hopes of providing better care.In pursuit of providing better and more effective medical care, CMS routinely updates a list of “never events.” Never events are “errors in medical care that are clearly identifiable, preventable, and serious in their consequences for patients, and that indicate a real problem in the safety and credibility of a health care facility.” These never events span the range of medical providers, including doctor’s offices, surgeons, clinics, and nursing homes.

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