To Sue, or Not to Sue

Credit: COD Newsroom

When you send someone you love to a nursing facility, you likely trust that your loved one is in good hands. Nursing is a caring profession by definition, so why would you worry about your loved one receiving around-the-clock care?

Unfortunately, not all experiences end this way. As Esther Brown’s family tells The Des Moines Register, some patients’ stays end in legal nightmares.

In 2011, Brown’s family sent 80-year-old Esther Brown to a nursing home. They were asked to sign a contract that essentially revoked their right to sue the home for negligence, should a dispute arise. The contract specified that if the family or Brown had an issue with the quality of care at the facility, they would need to take the complaint to an arbitrator. Unlike a court system that has qualified judges and juries, an arbitrator is a totally separate party who is appointed by the home to settle disputes.

With an arbitrator, the family can’t always ask for documents or witnesses that can speak to cases of abuse in the home.

For families, this means forgoing official channels that can prove useful, especially for criminal cases of neglect. With an arbitrator, the family can’t always ask for documents or witnesses that can speak to cases of abuse in the home.

The Brown family signed the contract without realizing these consequences. When Esther Brown was found two years later in bed, covered in her own blood, her family quickly realized how important the right to sue is for families. One of the nurses in the home allegedly struck Brown with a can of shaving cream, causing her to bleed from her face. When Brown died months later, her family took the case to court, despite their arbitration contract with the home.

A judge upheld the family’s right to sue the nursing home directly in court, overriding the terms of the contract. The reason? The judge thought the contract took advantage of Esther Brown’s family during a delicate and emotional time.

How can you fairly make the right legal decision when so many other factors are affecting your judgement?

Credit: Ulrich Joho

When you have cared for a sick relative for years, slowly watching their health decline, the desire to put them into a quality nursing home can be a strong one. The stress of making this transition, and the emotional turmoil that comes with losing someone you love, can make contractual decisions almost impossible. How can you fairly make the right legal decision when so many other factors are affecting your judgement?

This case has pushed many legal experts to advocate for a ban on the use of arbitration agreements in registered nursing homes. This would preserve the right for families to sue homes in court should anything happen to their loved ones at the fault of the facility.

The question is whether a nurse’s freedom to do his job should supersede a family’s right to seek legal help when something goes wrong.

Nursing facilities have a reason to fear lawsuits, as does any medical profession. Nurses care for elderly patients who usually have a host of serious, potentially fatal medical problems. When you work in this high-risk profession, you also risk facing a lawsuit if a patient is injured or dies on your watch. The question is whether a nurse’s freedom to do his job should supersede a family’s right to seek legal help when something goes wrong.

Even if patients are injured or die while under the watch of nurses, courts don’t always find the nursing facility at-fault. Most arbitration contracts offer more protections for homes than they do for the patients inside.

While this issue is debated, families need to take a careful look at contracts before they sign. The right to sue might not seem like an important one in the moment, but it can be absolutely vital in the future.