Placing a loved one in a Virginia nursing home is not an easy decision. On the one hand, it can be difficult if not impossible to provide the level of care that aging loved ones need. However, choosing which Virginia nursing home to trust with your loved one’s safety can also be a difficult decision, especially given the reputation of nursing homes in general.
While most Virginia nursing homes are staffed with caring workers and provide a good quality of life for residents, one does not have to look far to realize that is not always the case. In fact, it is estimated that more than 1 in 10 residents experience some form of physical abuse or neglect at some point in their stay. Of course, in the event of nursing home abuse or neglect, the nursing home can be held responsible for any resulting injuries.
That being said, holding a Virginia nursing home responsible for a loved one’s injuries can be tricky for a number of reasons. First and foremost, most nursing homes include an arbitration clause in their pre-admission contracts, requiring that any claims be resolved through binding arbitration rather than through the court system.
Arbitration is generally viewed as a nursing-home friendly forum because, as the drafter of the contract, the nursing home is able to choose the specific arbitrator that will hear any cases. Additionally, a nursing home is able to save on legal costs and will likely be able to avoid making the nature of the claims public knowledge.
Given the realities of arbitration, most Virginia nursing home residents would be better served by having a court of law hear the case. However, once an arbitration agreement is signed, it is generally enforceable unless there is a problem with the clause itself or the manner in which it was executed. Courts differ on how they interpret these agreements, and the determination is very fact-specific.
In one recent nursing home case, the plaintiff, who was named as an alternate designee in her mother’s power-of-attorney document, signed a pre-admission contract containing an arbitration agreement. After her mother passed away just a week after leaving the nursing home, the plaintiff filed a wrongful death case against the nursing home. In response, the nursing home sought dismissal based on the arbitration agreement.
The plaintiff argued that, as an alternate designee, she did not have the power to legally commit her mother (or her mother’s estate) to arbitration. However, the court determined that because the plaintiff had been acting with the authority of the power-of-attorney document prior to her mother’s admission by signing checks and carrying out her mother’s affairs, it would not be fair to allow the plaintiff to claim in this one instance that she did not have the authority to act under the agreement. The court also noted that nowhere under state law was it required that a primary designee be shown unable or unwilling to accept the responsibilities before the rights in a power-of-attorney document flow to an alternate designee.
Is Your Loved One at Risk?
If you have a loved one in a Virginia nursing home and are concerned that they have not been getting the care they need and deserve, contact The Schupak Law Firm. Attorney Sidney Schupak has extensive experience handling Virginia nursing home abuse and neglect cases, and knows what it takes to be successful on his clients’ behalf. To learn more, call 703-491-7070 to schedule a free consultation to discuss your case with Attorney Sidney Schupak, a dedicated Virginia personal injury lawyer.
See More Blog Posts:
Court Rejects Plaintiff’s Uninsured Motorist Claim in Recent Car Accident Case, Virginia Injury Lawyers Blog, June 5, 2018.
Slip-and-Fall Accidents in Virginia Grocery Stores, Virginia Injury Lawyers Blog, June 18, 2018.