The Real Life Consequences of Forced Arbitration

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The Real Life Consequences of Forced Arbitration  

William Kurth

At age 84, William Kurth, a WWII veteran from Racine County, Wisconsin passed away as a direct result of lack of care and treatment while he was a resident at Mount Carmel Medical and Rehabilitation Center, which is owned by Kindred Healthcare Inc.  After his wife of 63 years, Elaine Kurth could no longer care for him at their home, she and her family made the difficult decision to admit Mr. Kurth into a nursing home.  The problem was that the only nursing home in their town, Mount Carmel, had no openings at that time, so Mr. Kurth was put on a waiting list and had to be admitted into another nursing home approximately 20 miles away from Mrs. Kurth.  When Mount Carmel contacted Mrs. Kurth to tell her that Mr. Kurth could move there, she was elated because Mrs. Kurth did not drive, and so it was very difficult for her to visit her husband in the other nursing home.  Mount Carmel was within walking distance of Mrs. Kurth’s home. 

On October 29, 2004, when Mrs. Kurth went to Mount Carmel to help her husband admit himself into the nursing home, she found that Mr. Kurth was not there, as she had expected.  Instead of waiting for Mr. Kurth to arrive, the admissions coordinator rushed Mrs. Kurth through over 50 pages of admissions documents within approximately one hour.  Mrs. Kurth was also taking prescription medication at that time.  She was not given an opportunity to read the multiple pages of text; instead the admissions coordinator used her own words to explain what the documents meant.  At the end of that 50-page agreement was a mandatory binding arbitration agreement.  The admissions coordinator described the mandatory agreement as necessary in order to admit Mr. Kurth into the nursing home. 

After being discharged back to Mt. Carmel following hip surgery to repair a broken hip, he was virtually immobile and therefore at risk for pressure ulcers.  Despite this knowledge, the nursing home did not update or change his care plan in any way.  As a direct result, Mr. Kurth lost substantial amounts of weight, developed 10-11 stage 4 pressure ulcers, which the staff entirely failed to prevent and treat.  These pressure sores were so severe that they left bone and organs exposed.  During this period of time, Kindred transitioned from a wound care team of multiple caretakers to a single wound care nurse, who was responsible for all of the wound care for 155 residents.  The wound care nurse failed to treat any of the pressure ulcers.  Due to this severe understaffing, failure to train, and failure to supervise staff, Mr. Kurth suffered from untreated pressure ulcers, dehydration, and malnutrition.  These factors directly led to his death. 

After his death, Kindred officials offered to pay for half of his funeral costs and claimed that they felt somewhat responsible for his death.  When the Kurth family rejected this offer, Kindred offered to pay all of the funeral expenses, and the Kurth family again rejected this offer.  The Kurth family then requested multiple copies of Mr. Kurth’s medical charts and all documents related to his care, but Kindred did not present a copy of the arbitration contract to the Kurth family until after they filed a claim against the nursing home corporation.  The Kurth family filed a claim in Racine County Circuit Court, and shortly thereafter Kindred moved to dismiss the lawsuit and force the family into binding mandatory arbitration.  The judge ruled that the case must be arbitrated under the terms that Kindred put in its contract, solely on the basis of the signed arbitration agreement.  The Kurth family intends to appeal this decision.

William's son David spoke at an event in Washington, DC on April 29, 2009, to highlight the importance of passing the Arbitration Fairness Act and Fairness (S. 931 / H.R. 1020) in Fairness in Nursing Home Arbitration Act(S. 512 / H.R. 1237).  Click below to hear David's speech at the press conference.





John Donahue

John Donahue was a 93-year-old resident of Embassy Care Nursing Home, later purchased by Kindred Healthcare Inc., in Massachusetts.  While a resident there, he experienced an eye injury so severe that it required removal of his eye, and the infection caused by this injury later killed him. 

While Mr. Donahue was being transferred to his bed by mechanical lift, the certified nurse’s aide failed to follow the standard policy, and caused the lift to puncture Mr. Donahue’s left eye. With his eye bleeding and dripping clear fluid, Mr. Donahue was taken to the New England Medical Center, diagnosed with Vitreous hemorrhage and ruptured cataract, and his left eye was removed.  He later died as a result of this eye infection, and his daughter brought suit against the nursing home corporation.  The nursing home responded to the initial complaint by sending a letter in which they promised to “defend any lawsuit with the utmost vigor.”  However, once Mr. Donahue’s daughter hired an attorney to pursue the case on behalf of her father’s estate, the nursing home presented what it claimed to be a document, which Mr. Donahue, at age 91 and without any family members or any other witnesses present, had supposedly signed four years after becoming a resident of the nursing home. 

It is claimed that the admissions coordinator gathered a bunch of residents in the activities room and read them the arbitration agreement and then invited each resident to come up and sign. The nursing home alleges that Mr. Donahue voluntarily and eagerly signed the agreement, although there is doubt as to whether it is even Mr. Donahue’s signature.  This document contains a binding mandatory arbitration clause, which the nursing home corporation is trying to use to force Mr. Donahue’s family to go into mandatory arbitration on its terms.  The case is currently pending. 

Hattie Miller

After Hattie Miller suffered a mini-stroke her family decided to put her into a nursing home.  Guadalupe Valley Nursing Center was the only nursing home that had any open beds.  After being in the home for a week, the nursing home called Ms. Miller’s granddaughter at work and told her that she needed to rush down to the nursing home to sign paperwork or Ms. Miller would have to move out of the nursing home.  Despite the fact that Ms. Miller’s granddaughter told the nursing home administrators that she didn’t want to sign anything financial because she did not have power of attorney over Ms. Miller’s affairs, they had her sign documents that contained a mandatory arbitration clause.  Two weeks later, nursing home employees were transporting Ms. Miller from her bed to her wheelchair and her leg was badly injured.  The nursing home never reported the incident to medical professionals or to Ms. Miller’s family; they simply put her back in bed.  It wasn’t until Ms. Miller’s family went to visit her and she was complaining of extreme pain in her leg that they learned that Ms. Miller’s leg was broken.  It was a complete oblique fracture and it was so severe that they had to amputate Ms. Miller’s leg.  Only after Ms. Miller’s family filed a claim against the nursing home did they learn about the mandatory arbitration clause.  The nursing home corporation told Ms. Miller’s family that it would appeal any adverse decision to the Texas Supreme Court, which has a history of upholding mandatory arbitration clauses.  Accordingly, Ms. Miller’s family was forced to settle the case. 

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