Arbitration

ALABAMA SUPREME COURT RULES THAT NURSING HOME MALPRACTICE CASE CAN BE HEARD IN COURT

While a resident in a nursing home in Bessemer, Alabama, 84-year old Leatha Davis developed pressure ulcer sores on her feet. The condition continued to worsen until finally, she was forced to have both legs amputated below the knee. Davis sued the nursing home, its administrator, and the director of nursing for malpractice, alleging that the substandard care at the nursing home was responsible for her double amputation. The defendants tried to force her dispute into binding arbitration, based on a clause in the home's admission contract.

Arbitration is an out-of-court dispute resolution process that can be expensive for consumers and does not provide many procedural and substantive protections that are available in court. Consumers forced to arbitrate their claims have only limited access to evidence, they cannot present their case to a jury, and they have very limited rights to appeal a decision against them, even if the arbitrator does not apply the law properly. In addition, arbitrators often do not have the power to order companies to stop their wrongdoing, so that each person who is harmed has to bring a separate case, even when they all are challenging the same policy or practice.

A trial court ruled in favor of Ms. Davis, finding that the arbitration clause did not govern this claim for two reasons. The court found that Davis had not signed the admission contract (only her son had). The court also ruled that because Davis was suing for medical malpractice -- rather than alleging any violations of the contract her son had signed with the nursing home -- the home could not invoke the contract's arbitration clause, and instead the dispute properly belonged in court. The nursing home appealed, citing numerous substantive and procedural grounds for forcing the matter into arbitration. The Alabama Supreme Court recently rejected the nursing home's arguments, and affirmed the trial court's ruling that allows > the case to proceed to trial.

AARP filed a "friend of the court" brief on Ms. Davis' behalf in IHS of Southgate v. Davis. Arbitration requirements are now starting to appear in nursing home contracts, and AARP sought to inform the court about the vulnerability of many nursing home residents and the importance of preserving their access to the courts when they are injured.