A Michigan court has struck an arbitration clause in a wrongful death case against a nursing home that allegedly allowed one of its senile residents to wander outside and freeze to death.

The victim, who suffered from Alzheimer’s, exited through an emergency exit into the February night. Using the emergency exit apparently doesn’t set off an alarm, and no one knew the victim was missing until someone discovered her the next day, with her face frozen to the ground.

The victim’s son filed a wrongful death suit, alleging that the nursing home, Capital Senior Living, hadn’t provided reasonable care. Capital Senior Living tried to force the case to arbitration, citing the arbitration clause in the contract for care. The victim’s son pointed out that the victim had never signed the contract, and more importantly, the court held, the victim clearly didn’t have the mental capacity to enter a contract, so the arbitration clause was invalid.

Although we are opposed to binding mandatory arbitration in all its forms, arbitration clauses in nursing home contracts are particularly insidious, as they have the potential to prey on the elderly and on distraught families making the difficult decision to entrust a loved one to a nursing home. Like most arbitration agreements, there is no room for bargain; one can’t take out the arbitration clause and agree to the rest of the contract. In response, Congress introduced the Fairness in Nursing Home Arbitration Act last session.

The case is High v. Capital Senior Living Properties, a PDF is available here.
(Photo: evansent)

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