MAJOR NURSING HOME CASE TESTING MANDATORY ARBITRATION CLAUSE

CASE OF POTENTIALLY NATIONAL IMPORTANCE REPORTED IN NEW YORK TIMES

On August 21, 2009 a tragic event occurred at a nursing home in the quaint coastal town of South Dartmouth, Massachusetts. Elizabeth Barrow was over 100 years old at the time of the tragedy, but told her son on her birthday when she turned 100 that she wanted to live to be 104. The New York Times article describes her as a sweet, compassionate woman full of verve and love even in her advanced age. She was known around the nursing home as offering people hugs. It is no surprise that she made friends quickly and was quite popular amongst the fellow residents. Mrs. Barrow entered the nursing him in 2006 with her husband, with whom she shared a room. She felt fortunate just the same because her room gave her a terrific southern exposure, which helped her grow her beloved african violets. Then in 2008 Ms. Barrow’s new roommate moved in with her, after the new roommate had an argument with her previous roommate.

The exact nature of the relationship between Ms. Barrow and her roommate and very much in dispute. What is known is that soon after Ms. Barrow’s death the local District Attorney filed second degree murder charges against the 98 year old roommate. Soon after the charges were filed, the Defendant was found incompetent to stand trial. As of the time of the writing of the New York Times article, the Defendant was still alive at 104 in a local state hospital. Given her advanced age it is unlikely she will ever stand trial.

THE MATTER OF NATIONAL IMPORTANCE

Even though Ms. Barrow’s death was undoubtedly a tragedy, it is the civil case that the victim’s son Scott Barrow initiated against the nursing home that is of larger societal consequence. Soon after he filed suit against the nursing home, he was forced to litigate the matter via arbitration. The arbitrator issued a ruling with a simple check the box, finding that the nursing home was not negligent. It was revealed that the arbitration firm that ruled in favor of the nursing home in the matter of Elizabeth Barrow heard at least 400 cases from the same firm that defended the nursing home. It is unknown how often the arbitration firm ruled in favor of the defense firm or how many of those cases originated from nursing home disputes or how many other firms or how often the defendant nursing home’s firm referred cases out to other arbitration firms.

Once again, the larger societal problem with arbitration is that they are closed proceedings. Policy makers and citizens at large cannot discern patterns of conduct in the absence of public proceedings. Society benefits from an open airing of cases. Change occurs in such an environment. The tobacco and smoking cases in the 1990s is a great example of good that came of litigation. There is no way to even compare the statistics between nursing home litigation in an open Court versus arbitration to determine how fair arbitration is. Unfortunately arbitration clauses are virtually ubiquitous throughout the country and it is a rare case where a judge does not uphold such arbitration clauses.

NEW TACTIC BY PLAINTIFF’S ATTORNEYS

Over the last decade a cadre of attorneys representing plaintiffs against nursing homes have tried a different tactic to help defeat such arbitration clauses and allow such a case to proceed in open Court, where Plaintiffs can utilize juries. They have made highly technical arguments, arguing, as in Mr. Barrow’s case against the South Dartmouth nursing home, that the children of the parents who sign the documentation do not have the capacity or legal right to bind their parents to arbitration. ¬†

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