Unlike most personal injury cases where a determination regarding the monetary damages an individual or family is entitled to receive is determined by a judge or jury, damages in an increasing number of nursing home negligence cases is now being made via an individual arbitrator or panel of arbitrators.
Many nursing home patients may unknowingly consent to mandatory arbitration agreements in admission paperwork. Under the terms of an arbitration agreement, an individuals right to a jury trial is forfeit and settled via an out-of- court arbitration system. Proponents of arbitration agreements tend to be nursing homes, who believe a dispute resolved via arbitration will be more favorable to them than before a jury.
Arbitration agreements created by a nursing home will set forth the arbitration procedure. In cases involving the use of a single arbitrator, the arbitrator is pre-determined by the nursing home. Some arbitration agreements set forth that disputes are to be determined via an ‘arbitration panel’ (usually three people) where both the nursing home and the patient choose an arbitrator, and a third arbitrator selected by agreement of the arbitrators.
For the most part, nursing home negligence disputes resolved via arbitration tend to have lower values than similar disputes tried before juries. Because some arbitrators receive ongoing business from nursing homes, it has been suggested that their willingness to award significant damages may be limited. Consequently, nursing home arbitration agreements tend to be vigorously fought by plaintiffs (injured parties, initiating a lawsuit) as unfair and in violation of personal rights granted under the Constitution.
In a break from traditionally conservative awards in wrongful death matters, a three-person arbitration panel awarded over $2.7 million in damages to the family of a nursing home patient who died in March, 2005 from complications related to gangrene and advanced pressure sores that developed during an admission to High Point Health Care and Rehabilitation Center in Tennessee.
The significant arbitration award was made against the nursing home itself and its parent company (Mariner Health Care), the nursing home management company (Mariner Health Care Management) and the nursing home licensee (National Heritage Realty Company). At the arbitration, the nursing home patients estate claimed that all entities were guilty of: negligence, violation of the Tennessee Adult Protection Act (TAPA) and medical malpractice.
For victims of nursing home abuse and neglect, this arbitration decision is very significant as it sends a message to nursing homes that they can no longer be assured of conservative awards by arbitrators. Although rarely awarded in arbitration matters, this arbitration panel made an award for punitive damages (an award made to punish the wrongdoer as opposed to compensate) against the nursing home as well.
The $2.7 million nursing home arbitration award is comprised of the following:
- $250,000 for TAPA violations
- $400,000 in attorneys fees for intentional, malicious or fraudulent misconduct resulting in TAPA violations
- $626,396.32 for medical malpractice
- $1,500,000 punitive damages
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Nursing Home Injury Laws: Tennessee