Families Fight To Bring Nursing Home Lawsuits Out From Behind Closed Doors

ThinkProgress / August 30, 2016 / by Alex Zielinski

 

Piri Balazs didn’t intend to stay at Cambria Care Center, a nursing home in central Pennsylvania, for more than a week or two. The otherwise healthy 91-year-old woman had fallen and fractured her hip while gardening — which required surgery — and was directed to Cambria for a brief rehab stay. “No more than ten days,” her doctor had said.

Instead, Piri was taken out of Cambria by her sons three months later in drastically worse shape than she was when she entered.

A clear case of neglect, Piri’s sons decided to sue Cambria, in what they thought would be a cut-and-dry case. But, thanks to a growing trend among nursing homes to push lawsuits behind closed doors, instead of to a juried, public court trial, they quickly discovered it wouldn’t be so simple.

Their mother’s case illustrates the dangers of the status quo — one that, despite serious pushback from advocates and lawmakers, continues to go unchecked while hundreds of mistreated and abused nursing home patients are left without justice.

Piri’s sons, Joe and Csaba, were shocked by how quickly their mother’s health deteriorated under Cambria’s “care.”

With two spine fractures from serious falls, a large, infected ulcer on her heel that prevented her from walking, incontinence from not being able to get to the bathroom, receding gums from poor hygiene assistance, and a dramatic weigh loss from not being given her dentures, Piri had become a “changed individual.”

“My mother was a very proud woman,” said Joe. “She was a charming and happy person. It was immediately obvious something had changed.”

Joe and his brother had pulled their mother out of Cambria after weeks of demanding change from staff and administrators. Instead, staff changed her records to cover up this neglect. Only after the Department of Health inspected the facility — altered to the problems by the Balazs brothers — did they realize nothing was going to improve.

Only after returning home, and receiving needed care from an in-house nurse, did Piri’s health finally improve. But, Joe said, she never was quite the same. She passed away within the year. And her sons sued.

The case was quickly forced into private arbitration from a judge, since Cambria had a document showing Joe’s sign-off of an arbitration deal (a document that he doesn’t recall). To a judge with a full docket, it was likely an easy decision. But to the Balazs’ attorney, Peter Giglione, the move meant all transparency was out the window.

“Private arbitration means no public court records, no accountability,” Giglione said. “It’s a way to keep the company’s public image clean.”

First, Cambria refused to share any medical records or documents Giglione requested prior to the arbitration — something that would be mandated by law in a normal court proceeding.

Then, there was the silence. Following the July 2015 arbitration, Giglione and the Balazs brothers were told they’d get a decision in “two to three” weeks. Despite numerous calls and emails, they have yet to hear a word back from the arbitrator.

“It’s been over a year now of me calling at least once a week,” Giglione said. “No response.” There’s no strict deadline to rule on a case in arbitration.

This isn’t the first time Giglione’s been strung along by residential care companies. Balazs’ case is the sixth lawsuit against a nursing home he’s arbitrated on. These kind of closed-door cases have quickly become commonplace under the federal law allowing them, a law that civil rights advocates say take advantage of the most vulnerable.

When a client is admitted to a nursing home, either they or a family member are given a stack of paperwork to sign off on. Buried in this stack is a contract about private arbitration, whose wording can easily convince a rushed reader that it’s a smart call. Like Joe, the clients usually discover this only after they sue.

“It is unreasonable to assume that residents or their loved ones are able to comprehend the likelihood of grievous harm or poor care occurring within a facility when these agreements are signed upon admission,” wrote a group of 39 health and aging advocates in a letter to Medicare and Medicaid Services (CMS) in October. “No one should be expected to anticipate or contemplate the occurrence of such tragedies.”

Those advocates — along with 34 senators, 16 state attorney generals, 32 House members, 19 consumer justice groups, and the American Association of Retired Persons (AARP) — are pressing the federal government to update its nursing home standards to address this issue.

The first “major update” in nursing home standards in 25 years could have finally banned private arbitration clauses in nursing home contracts. Instead, to advocates’ upset, it only proposed updated wording in the contract itself in an attempt to make it clearer.

This proposed update won’t help people like Sherry Turner-Frazier, who signed her admittance papers at a Kentucky nursing home despite having “severe dementia.” One of those papers was an arbitration agreement that was used against her when her family sued the hospital for neglect.

In early August, CMS sent the final text of the updated standards to the federal budget office, but it’s yet to be known if they took advocate’s comments into consideration.

If they didn’t, Giglione said, “they aren’t going to change anything.”

“The only real way to stop this is to get rid of arbitration all together.”

https://thinkprogress.org/this-federal-rule-forces-nursing-home-lawsuits-behind-closed-doors-ca41eea378a6