Published By: Maxwell S. Kennerly, Esquire

Nursing Home Abuse

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Every day, billions of dollars changes hands based on the myth that people actually read, and agree to, every word in every contract they’ve ever signed. Ever read your cell phone contract? Your cable contract? Judge Posner famously admitted that he didn’t read the contract that came with his home equity loan.

Truth is, who has the time or energy to scrutinize every line? And what power do you have to negotiate it? Try negotiating your cell phone contract some time. See if you can even find a person at the company with the authority to negotiate.

Decades ago, thoughtful jurists like federal Judge J. Skelly Wright and California Justice Mathew Tobriner analyzed the issue carefully in cases like Williams v. Walker-Thomas Furniture Co., 350 F. 2d 445, 449-450 (1965) and Steven v. Fidelity & Casualty Co. of New York, 58 Cal. 2d 862, 883, 377 P. 2d 284, 298 (1962) and came to sensible conclusions like Skelly Wright’s statement of the law of contracts of adhesion in Williams:

Ordinarily, one who signs an agreement without full knowledge of its terms might be held to assume the risk that he has entered a one-sided bargain. But when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms, it is hardly likely that his consent, or even an objective manifestation of his consent, was ever given to all of the terms. In such a case the usual rule that the terms of the agreement are not to be questioned should be abandoned and the court should consider whether the terms of the contract are so unfair that enforcement should be withheld.

That was then, this is now. Now, when the United States Supreme Court thinks that might makes right, so much so that it routinely ignores constitutional limits on special interest legislation for copyright holders while vigorously enforcing the “free speech” rights of pharmaceutical companies to go fishing through your prescription medication records, it’s all just a question of how consumers, patients, employees, and family members will lose in front of the Supreme Court, not if they will. 
Continue Reading One-Sided Arbitration: How To Tell If A Company Expects To Hurt Or Cheat You

In 1987 Congress passed the Nursing Home Reform Act, but the NHRA only said that a “nursing facility must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident,” without providing specific numbers on the minimum staffing levels for registered nurses and nurse’s aides required per resident. The situation is a perfect storm for elderly abuse and neglect: more residents and fewer nursing assistants translates directly into profits for the owners of the facility, sending the whole industry into a ‘race to the bottom.’ The states have filled in the gap in some ways with regulations establishing the number of care managers that have to be assigned per resident, but standards are still quite low and, worse, they’re routinely violated.  Given how widespread nursing home horror stories are — virtually everyone knows a story, or two, or ten, about an elderly resident being left dehydrated for days or developing an infection that’s never treated — you would think all attention would be directed towards improving the quality of elder care.

Right now it seems the Pennsylvania legislature is focused on doing exactly the opposite by shielding nursing home companies from the same laws that apply to the rest of us (except doctors and hospitals, who received this same special protection under the MCARE Act in 2003). As Amaris Elliott-Engel at The Legal Intelligencer is reporting,

Last month, the House voted on the third consideration and final passage of House Bill 1907 103-89 to amend the Medical Care Availability and Reduction of Error (MCARE) Act to cap punitive damages in lawsuits against personal care homes, assisted living communities, long-term care nursing facilities, home care agencies, home health care agencies and hospices at 200 percent of the compensatory damages awarded in such lawsuits. The bill is still pending in the state Senate. The cap would not apply to cases involving intentional misconduct.

The primary sponsor of the legislation, Rep. Glen R. Grell, R-Cumberland, said that he advocated for the legislation because nursing homes in his district should not be “subject to the jackpot punitive damages awards that could result.”

Nursing home litigation is a common target for tort reform propaganda these days, and as far as I can tell Rep. Grell hasn’t come up with any examples of what he means by “jackpot punitive damages awards,” he just thinks it sounds nice. 
Continue Reading The Reality Of Punitive Damages In Elder Neglect Lawsuits