Senators question nursing homes’ growing use of arbitration

? William Kurth fractured his left hip and leg and contracted numerous pressure ulcers during his final months of life in a Wisconsin nursing home. When his family attempted to sue for negligence, a judge dismissed the case because Kurth’s wife had agreed, as part of her husband’s admission, to have all complaints go through an arbitrator.

Such agreements are becoming common as nursing homes look to avoid costly civil lawsuits. However, federal lawmakers, urged on by consumer advocacy groups and the trial lawyers lobby, are concerned that families are signing away their ability to hold the homes accountable for poor care.

A Senate committee investigating the growing use of binding arbitration by nursing homes says more than 100 lawsuits have been filed in the past five years challenging such agreements. Lawmakers in both chambers have filed bills that would make the arbitration agreements unenforceable.

Arbitrators take into account federal, state and county laws when resolving legal disputes. Often, the parties are free to negotiate some of the ground rules for their case. The process has the advantage of being faster and less expensive for both parties. It also is confidential.

Kurth’s wife, Elaine, was under extreme duress and on medication when she signed the papers that allowed her husband, a stroke victim, to stay at the nursing home, said Jason Studinski, the family’s attorney.

Members of the Kurth family, who will appear before Congress today, say their father, a World War II veteran, died at age 84 from infections that occurred because excrement and urine were not cleansed from his bedsores for days at a time.

Kindred Healthcare, based in Louisville, Ky., said it would not comment specifically on the Kurth case. But it noted a judge’s decision that found the arbitration agreement was optional and not a condition for admission.

The company said arbitration was designed to achieve several goals, including prompt resolution of legal disputes and lower costs to both residents and their families.

Lawmakers don’t want to preclude binding arbitration as an option, said Sen. Herb Kohl, D-Wis., and chairman of the Senate Aging Committee. But the decision has to be made by both parties after a dispute occurs.

Stephen Ware, a professor of law at Kansas University, urged lawmakers in his written testimony to refrain from banning arbitration for nursing homes. He said lower legal expenses can increase access to justice, especially in smaller cases where it can be difficult to attract a lawyer. Also, lower legal expenses can benefit others to the extent that a nursing home’s costs are ultimately paid for by residents and their families, or by taxpayers.