Staying Informed with the Law
by George Wise
Money and politics may dominate the legislative and executive branches of government, but the courts, and more specifically jury trials, are the one place where regular folks can hold corporations and institutions responsible for wrongful acts. Our judicial system is designed so that a citizen can bring his or her case before a local community jury to seek justice and hold wrongdoers accountable.
Sadly, there remain several avenues by which special interests can manipulate the system, therefore hiding from responsibility and smothering the voice of the local community.
Recently, KARK’s Brittney Johnson told the story of a U.S. veteran who suffered a needless and wrongful death in a Fayetteville nursing home. As if his family’s grief wasn’t enough, it is now compounded as they have learned that they are unable to hold the nursing home accountable in a court of law due to enforcement of an arbitration agreement. A popular method of gaming the system, arbitration agreements are often found in the fine print of contracts and replace the voice of a local judge and local jury with one, two or three hired arbitrators who decide whether the nursing home abused the resident.
Unlike trials conducted in open courtrooms for all to see, arbitration hearings are held in private, often in a hotel conference room or law office, hidden from public view. The decision is usually confidential too, meaning the taxpayers who fund nursing homes are none the wiser about any potential problems.
When forced, arbitration agreements take away a fundamental right, the right to a jury trial by one’s peers, which is guaranteed by the Seventh Amendment to the U.S. Constitution. As the population of nursing home residents increases every year, it is urgent that our community stand up to policies that nurture secrecy and hidden decision-making rather than safety and accountability.
How is it that if our most vulnerable die from abuse or neglect, their abusers can escape public accountability? It helps to understand that some nursing home operators are very savvy at exploiting the system to increase their profits and evade responsibility.
For a moment, consider the fact that revenue from Medicare and Medicaid constitutes the bulk of nursing home funding. This means nursing home operators directly profit from our taxpayer dollars, and, disturbingly, some of these operators use those profits to gain political favor. While some nursing home owners use that favor to continue secretive operations, transparency is the only way to fix the problems we currently face.
For Arkansans, the time to increase transparency is right now. Arkansas recently has received national attention due to the low quality of care in its nursing homes. A reporter with the Center for Public Integrity spent years researching difficult to obtain data from nursing homes across the nation on self-reported staffing levels vs. the actual levels. His research revealed that Arkansas and Louisiana experience the greatest staffing reporting discrepancies in the nation.
Accurate staffing reporting is essential in understanding the quality of care available at one home vs. the next. This campaign of misinformation, paired with the widespread use of arbitration agreements, leaves Arkansans vulnerable to a nursing home industry that shuns accountability and secures an ever-growing amount of power at our state Capitol.
Instead of allowing their political heft to grow, and the crisis in Arkansas to continue, we must hold negligent operators and lawmakers accountable for ensuring proper care to our elders. Last year alone, there were more than 2,000 reported incidents of actual harm done to nursing home residents in Arkansas. We frequently hear of people dying from dehydration or of untreated bedsores or of grandmothers left to sit in their own waste because there is simply not enough staff to care for all of a home’s residents.
The public does not hear about these incidents, because when a family is forced into arbitration, a confidentiality agreement usually follows. No one in the United States should die from dehydration or bedsores when under the care of a nursing home, and if they do, their families should have access to the recourse put in place by our founding fathers.
Just because some nursing home operators know how to manipulate the system doesn’t mean we have to let them. We can break this cycle by learning everything we can about the crises in our nursing homes and by telling our lawmakers that our voices are not up for sale to the nursing home industry. We must tell them that we value safety and accountability over secrecy and immunity, and then let our votes reflect the same. Arkansas elders simply deserve better.
George Wise of Little Rock is president of the Arkansas Trial Lawyers Association. Email him at GWise@BradHendricks.com.
Published on Arkansas Business on Monday, January 12, 2015