OTLA Trial Lawyer Fall 2021

45 Trial Lawyer • Fall 2021 By Kristen West McCall OTLA Guardian I take the call from a potential client who is distraught about the lack of care her husband received at an assisted living facility, neglect that landed him in the hospital. Her husband has severe dementia and insulin-dependent diabe- tes. He had been telling the nursing staff he “didn’t need his insulin anymore,” so they didn’t give it to him. For the last 30 days. And they never called his doctor or his wife. He is now hospitalized for acute encephalopathy and diabetic ketoacido- sis and will likely die soon. She sobs,“How could this happen?” She’s thoughtful about what’s happened. “I can’t send him back there, but I’m afraid I signed some- thing that says I can’t sue them for this.” I pause to hold back a frustrated sigh because, even if they don’t know it yet, most of my potential clients have signed that dreaded “something” that limits their access to justice when it comes to abuse and neglect of care in a facility setting. I ask her to send me copies of whatever paperwork she has from the facility so I can review it. I try to calm her fears, explaining that even if there is a valid agreement to arbitrate — even if the claim is limited in some respects — I’ll help her get every ounce of justice available to her and her husband. Foregoing rights She sends the paperwork. On the 23rd page of the residency agreement is what they’ve called a “voluntary agree- ment for arbitration.” It’s been signed by this potential client who is the court- appointed guardian for her husband. It’s six pages long, longer than most I review. I tell her I’m worried it’s enforceable because it has the tenets of a legally bind- ing agreement in this setting. It clearly states the signer of the agreement gives up the right to a jury trial for all disputes between the parties and signing the agreement is not required for admission for care at the facility. Legally speaking, there are none of the most offensive terms that might help us nullify the agreement: no limitations on discovery, damages or deadlines; no cost shifting or attorney fee provisions; and it allows the parties to agree on what dispute resolu- tion service to use. In other words, it certainly looks like she would be com- pelled to arbitrate the case, rather than submit her case to a jury. But wait — on the last page — in all caps which are hard to read it says THE RESIDENT AND/OR LEGAL REP- RESENTATIVEMAY RESCINDTHIS AGREEMENT WITHIN 90 DAYS FROMTHE DATE OF THE SIGNA- TURE OF BOTH PARTIES. In the hundreds of arbitration agreements I’ve seen, I’ve never seen this before. The date of the signature is roughly 60 days ago. I jump up out of my desk and exclaim “Wow, how cool.” This potential client probably wondered about my profes- sionalism, but I ran with it, “I’ve just not seen this before.” It’s the most friendly and clear arbitration clause I’ve seen. Nothing I know of requires them to add this right to rescind. Opportunity I’m very excited to send the letter rescinding the agreement to waive her right to a jury trial. And I’m happy to now represent the wife, for her husband in this wrongful death claim. In the big- ger picture, I’m excited that the style of this “voluntary arbitration agreement” may be part of a greater trend — that perhaps facilities are starting to follow the rules set by state law and Medicare. Over the last decade, I’ve reviewed so many offensive clauses, and been com- pelled to arbitrate because of valid bind- ing arbitration agreements that were not fully understood by my clients at the time Kristen West McCall Avoiding the Fight See Avoiding the Fight 46 NURSING HOME / CARE FACILITY ARBITRATION CLAUSES