MedicalPolicy_nursinghomes_ProfLiab504736759In response to increasing runaway verdicts with large awards for punitive damages, many nursing homes are including arbitration clauses in their admission agreements. The U.S. Supreme Court’s decision in Marmet Health Care Center v. Brown, 132 S.Ct. 1201 (Feb. 2012), held that these agreements are enforceable because the Federal Arbitration Act (FAA) preempts both state laws and judicially established public policies that prohibit contracts that require arbitration to resolve personal injury lawsuits. The only exceptions are if the party seeking to enforce the agreement took advantage of the other or the terms are so one-sided that the clause is “unconscionable.”

The issue of enforceability of the contract, however, is deferred to the state courts to apply their own contract principles and laws to determine if the contract between the nursing home and the patient is so unconscionable it cannot be enforced under the FAA.

Continue Reading Arbitration Agreements in Nursing Home Admission Agreements

Drepressed Man TalkingAt some point in their careers, most medical malpractice defense attorneys have defended a medical facility against a claim for negligence based on one patient being attacked by another. The negligence claim is premised on a failure to properly supervise and protect a patient from another who is known to have a propensity for violence. This scenario happens in psychiatric institutions, hospitals (psychiatric units or regular floors) and long-term care facilities.
Continue Reading Patient-on-Patient Violence: Does a Negligence Case Trump a Patient’s HIPAA Rights?

Nursing-Home-Care_TS-119913526State and federal regulations weren’t enacted to protect nursing home residents only from neglect and abuse. Federal law requires facilities to maintain environments that promote, maintain or enhance a resident’s quality of life. Adults have the right to make choices about significant aspects of their life in a facility. Indeed, the facility must make reasonable accommodations for the individual resident’s needs and preferences to the extent that the health and safety of the individual resident or others is not endangered.
Continue Reading Romance between Nursing Home Residents – Should the Facility Step In?