OTLA Trial Lawyer Fall 2021

42 Trial Lawyer • Fall 2021 By Faith Morse OTLA Guardian I opened up my email at the end of a long Monday to do a quick check for anything important I needed to see be- fore I signed off my computer. That’s when I saw it — an email from a frantic granddaughter trying to find a safe place for her grandmother after discharge from a hospital. She asked for a “quick review” of the 35-page admission agreement. Is this a normal part of the service I provide to a client? No. Was reading that agree- ment going to take far more than a “quick minute?” You betcha. I did it anyway and I was so glad I did. You see, the facility had stuck a bunch of seriously problematic clauses in that admission agreement. Not only did it compel arbitration instead of going to court and having things heard publicly Faith Morse ( i.e. enabled the facility to keep its wrongdoings quiet and out of the public view), but even if Grandma challenged this arbitration clause in court and won, it still waived a jury trial, which means any claims would be tried to a judge, not a jury. It required any arbitration to be held in Boise under Idaho law. It limited discovery dramatically. Grandma could only get 1,000 pages of records of any kind and only take three depos. Beyond that, it had some fairly unique and horrific requirements. For example, “The parties to this agreement waive (i) any net economic damages for the past and future medical expenses that are offset by any collateral source payments such as payments made by medical insur- ance, (ii) noneconomic damages, such as pain and suffering, to the full extent permitted by law, in excess of $25,000 and (iii) punitive damages against each other.” Grandma would have to pay half the cost of the arbitrator(s) to even go to arbitration. That is a cost to her of $15,000-$50,000 depending on how many days and how many arbitrators (yes, those numbers are from actual cases). It required the granddaughter to sign a “personal guaranty,” making granddaughter personally (not as her grandmother’s conservator/guardian, but her personally) agree to pay for any money due under this agreement, includ- ing the attorney fee provision. It had her waive “all suretyship defenses or defenses in the nature thereof, generally.” And, it said this contract shall be governed by the laws of Idaho. Now if you are like me, you may be wondering why an Oregon corporation doing busi- ness in Oregon with Oregon residents wants Idaho law to apply. The only an- swer that makes sense to me is because so much of this agreement violates Or- egon laws set up to protect Oregon care facility residents. The other option that comes to mind is moving it that far away means finding an attorney in Boise who wants to work on a case in Southern Oregon with limited damages, without traveling here to contain costs, making it even more impossible to pursue. In any case, it is an intentional additional bar- rier to a family seeking accountability in the event a problem arises. In the nick of time This is the worst admission agreement I have ever seen in any kind of care facil- ity case. I advised the client not to sign it and gave her detailed reasons why not. She responded to her DHS case worker that she could not sign the admission agreement, which led to me talking to a lead DHS caseworker, someone in the Medicaid Policy unit, and then the DHS quality, safety and oversight team. Did that take a lot more time? You betcha. Was it worth it? Absolutely. You see, by pushing this one up the chain and spend- Defeating Nursinghome Arbitration Clauses