We at Consumerist really hate mandatory binding arbitration, the faux-legal sucker punch that companies deliver when they screw up and you try to sue, and so should you. We’ve talked about its evils a lot, but no one can describe this legal abomination as well as the victims themselves, so this week we’ll let them speak.
On Wednesday, consumer groups and arbitration victims will head to Congress to demand passage of the Arbitration Fairness Act, which would ban mandatory binding arbitration clauses in consumer, employment, and franchise contracts. We’ll be sharing the stories of some arbitration victims here throughout the week. Today’s story is by Marlene Owens, whose late father was killed by a nursing home’s negligence, but was prevented from suing because the nursing home had gotten her elderly and incapacitated father to sign a new contract that included an arbitration clause.
My dad, John Donahue, spent his last thirteen years living in a nursing home. By the age of 93, his caretakers needed a mechanical lift to transfer him in and out of his bed, his bath, his chair. One evening in 2005, an aide tried to put Dad to bed using the lift by herself when the machine required two people to operate it. Not only did the lift severely rupture my father’s eye and crush his eye socket, but the aide put him to bed for the night leaving his injuries untreated. The emergency surgery to remove his eye two days later was followed by a horrible infection that killed Dad after six weeks of unnecessary pain and suffering.
The next blow came when I tried to file a lawsuit against the nursing home and learned that, even though my dad’s death was caused by its staff, I had no right to sue the home because of three words that I had never seen together before: binding mandatory arbitration. Here’s what happened: I originally signed a contract to admit Dad to the Embassy Care Nursing Home which, four years later, was purchased by Kindred Healthcare Inc. The new owner decided to limit its financial liability for patient care by adding a new and unfair agreement to the facility’s admission contracts, including those of patients already in residence.
Kindred staff took the outrageous liberty of rounding up a group of residents, including Dad who by then was 91 and had suffered a stroke, and read the arbitration agreement to them. There was literally no way he could have understood what that paperwork was about. The staffer then extracted “voluntary signatures” from these fragile, medicated and confused residents so the nursing home could cheat them and their families out of having their day in court if serious problems with care came up.
While I never knew Dad was put in this abusive situation, I know this for certain: He never trusted the woman who presented him with this paperwork, and he would never have voluntarily cooperated with her. She had the nerve to claim he “eagerly” signed the form that I knew nothing about until after his death, something I will always have serious doubts about.
Nursing homes by definition are supposed to care for the frail and elderly. If they are doing their job right, why shouldn’t they accept responsibility for those patients? By trying to eliminate people’s right to sue, doesn’t that just make it easier for facilities to be careless and abusive, like they were in Dad’s case?
Kindred Healthcare has been trying to force me into arbitration over my father’s wrongful death for four years now, but my anger has given me the strength to fight back. Just this month, thanks to their own questionable tactics, a real judge has decided that my case against Kindred deserves a jury trial in a real court of law, not some arbitrator bought and paid for by the nursing home. I’ve asked for a speedy trial because I’m 74 and I want to be around to see Kindred lose this case. For me, it’s not about the money. I want to see our story in the newspapers. I want people to know the ugly truth of what this business did to my father and how they’ve tried to get away with it all this time.