Connie Lyell doesn’t believe her mother would knowingly sign an arbitration agreement with the nursing home she moved into in 2013, and she’s positive the agreement wasn’t given to her father since he died two decades earlier.
But for the nursing home Pruitthealth Augusta, it’s clear: Dorothy Mae Watts signed an agreement that said she would settle any claim about her care by arbitration. Her signature is on the form, and a staff member completed a checklist proving Watts was advised that the agreement meant she would give up her right to a jury trial.
Lyell filed suit against the nursing home last year. Watts died Oct. 5, 2018, at age 81. The Richmond County Superior Court lawsuit alleges negligence led to a fall, a broken leg and her death. But before any decision can be made about possible negligence or liability, a judge must decide who makes those decisions – a jury or an arbitrator. That decision is pending.
When her lawyer first talked to Lyell and asked about the arbitration agreement, she didn’t know what he was talking about, Lyell said. She was her mother’s power of attorney and took care of everything for her, Lyell said. The day before her mother moved into Pruitthealth, the power of attorney document was faxed to the nursing home.
The arbitration agreement was in 89 pages of documents an admission coordinator took to Watts after she moved in, Lyell’s attorney Caleb Connor said. In her deposition, the employee said it was standard practice to go over the documents with residents whom she understood relied on her to explain what the documents meant.
The employee, who found Watts competent to make that decision on her own, had no medical training to make that decision, she testified at a deposition. She also couldn’t explain several terms used in the arbitration agreement. In a sworn statement, Watts’ daughter said she would not have allowed her mother to enter into such an agreement without consulting an attorney first.
Lyell was no stranger at the nursing home. Although she couldn’t take care of her mother full time because she had a job and a husband and children to take care of, she talked to her mother nearly every morning and at noon and visited Watts after work every day. Friday night was their regular dinner date. Lyell did her shopping and her laundry on Saturdays. She took care of all of the bills.
“My mother’s my heart,” she said. Now she hates Friday nights.
The arbitration agreement Watts signed also contained a signature line for Lyell. The agreement could have been voided within 30 days, but Lyell said she never saw it. A copy was supposedly given to her father who died 22 years earlier, Lyell said.
In moving for the lawsuit to be sent to an arbitrator, Pruitthealth’s attorney James Purcell noted that there is no evidence Watts was incompetent. Just because she gave her daughter power of attorney, that doesn’t mean she relinquished her own authority, Purcell contended.
Lyell’s attorneys contend the process of obtaining consent was dishonest and designed to deceive patients to waive their constitutional right to a jury trial. They contend the agreement was unconscionable and unenforceable.
The National Association of Consumer Advocates contends voluntary arbitration is not a bad thing, but the right to seek legal address should not be surrendered. The organization notes that businesses don’t use arbitration to settle their own disputes. Arbitration is not often cheaper than litigation for plaintiffs, but it is beneficial for companies.
The Heritage Foundation contends arbitration is an efficient and fair alternative to litigation. Many civil actions mainly line the pockets of plaintiffs’ attorneys. And arbitration can empower consumers to bring claims that otherwise would never be able to find an attorney because of the cost involved.
The issue of arbitration in Georgia isn’t settled legally yet, Connor said. There are cases on both sides of the issue. He wants the courts to examine the accumulated effects of the circumstances in which nursing home patients like Watts are presented with an arbitration agreement.
A spokeswoman for Pruitthealth did not respond to a request for comment about the use of arbitration.
Arbitration agreements with residents of nursing homes had been prohibited in 2016, but it was allowed in 2018. The Center for Medicare and Medicaid Advocacy permitted nursing homes to use pre-dispute agreements with their patients with the clear understanding for residents that signing such an agreement is not required for continued care.
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