Civil Rights Violations in Nursing Homes are Now Recognized Under 42 U.S.C. § 1983

            According to a recent article posted on Law.com, the estate of Melvinteen Daniels brought a suit against the nursing home, The Kane Center in Allegheny County, Pa., for Mrs. Daniels fatal case of sepsis caused by neglect, malnourishment and bed sores.  The lawsuit brought on Mrs. Daniels behalf had the cause of action for violating her civil rights by breaching a duty to ensure quality care under the Federal Nursing Home Reform Amendments (FNHRA).  The 3rd U.S. Circuit Court of Appeals ruled that residents of county-run nursing homes could bring lawsuits for civil rights violations under FNHRA section 1983, which challenges the quality of the resident’s treatment. 

Prior to FNHRA being passed in 1987, there were only two sanctions against nursing homes for noncompliance. One sanction was the secretary of Health and Human Services or the states themselves could decertify the facility and terminate the nursing home’s eligibility to receive Medicaid reimbursements.  The other sanction was if noncompliance was not an immediate and serious threat to the residents’ health and safety, the secretary or the states could deny payment for new admissions for up to 11 months.  If the government did not catch and enforce the sanctioned actions, there was not much deterrence for Nursing Facilities and protection for the elderly.  Private lawsuits became possible under FNHRA, and in addition to sanctions, nursing facilities are held accountable and deterred from abusing and neglecting their residents.  As courts breathe new interpretations in FNHRA, lawyers looking to protect the elderly have more ammunition to hold nursing facilities accountable for their abuse and neglect of residents.

            Now, victims (or their families) of elder abuse and neglect from county-run nursing facilities can bring a new cause of action which alleges violations of the victim’s civil rights.  The violation lies in the fact that “nursing homes are required to care for residents in a manner promoting quality of life, provide services and activities to maintain the highest practicable physical, mental and psychosocial well-being of residents, and conduct comprehensive assessments of their functional abilities.”  Abuse and neglect can now be treated as a violation of civil rights, more causes of actions can be brought to help lawsuits to hold nursing homes accountable.  Also, hopefully the fear of more causes of action and increased damages exposure will deter nursing facilities from abusing or neglecting their elderly residents. 

The York Law Firm believes the new cause of action for violations of civil rights is a positive step in helping regulate the Nursing Home Industry.  Since one of our specializations is Nursing Home Abuse and Neglect, the new ruling allows our firm to expand our work in this field of law.  We look forward to applying this new ruling to our cases involving county-run Nursing Homes and Assisted Living facilities who have neglected and abused residents. 

York Law Corporation

Sacramento, California

www.yorklawcorp.com

Do You Know Your Rights?

            According to the California Highway Patrol’s 2007 Statewide Integrated Traffic Records System, there were 188,551 collisions on state highways in 2007.  Of the 188,551 collisions, 184994 resulted in injury.  Following these collisions, most vehicle owners report the accident to their insurance company and have their vehicles repaired.  Once the vehicle is repaired, the vehicle owners go on with their lives and continue to drive their cars with the same sense of security they had prior to the collision.  What most people do not realize, however, is that they are now more likely to be seriously injured in a subsequent car accident if the dealership failed to do one thing – replace their seat belts. 

            Most people do not know a vehicle’s manual requires the replacement of all seatbelts worn during a collision.  Unless a consumer actually reads the car manual cover to cover, they miss the section that states:  “If a seat belt is worn during a crash, it must be replaced by the dealer.  A belt that has been worn during a crash may not provide the same level of protection in a subsequent crash.”  (2008 Honda Civic Owner’s Manual)  If seat belts worn during a crash are not replaced they can be less effective in subsequent collisions and cause serious injuries and death.  The replacement of your set belts worn during a crash should be covered under your insurance policy and, as such, should be paid for by your insurance provider.  When you take your vehicle to be repaired be sure to tell the repair shop or dealership which seatbelts were in use at the time of the collision.  Once they know, the shop should replace the seat belts at the same time they make the repairs to your vehicle.  If the repair shop/dealership does not replace the seat belts, show them that the car manual requires replacement of seat belts worn during a crash.

            If the repair shop/dealership still refuses to replace the seat belts, contact your insurance company immediately and request that the seat belts be replaced.  Of you or someone you know has been involved in a car accident, big or small, please review your car owner’s manual to see what your vehicle’s manufacturer requires.  If necessary, contact your insurance company and request the replacement of your seat belts.  Doing so may prevent possibly serious injury from a future collision.

            Should your insurance company refuse to replace your seat belts, contact a qualified attorney. 

            The York Law Corporation is a leader in consumer class action lawsuits and personal injury law.  We have extensive experience in holding insurance companies accountable and ensuring they pay for everything they are required to pay for by law.  We strive to prevent consumers from being taken advantage of by the insurance companies’ three D’s: delay, deny, and don’t pay.  It is our goal to stop the manipulative business practices of big business.

York Law Corporation

Sacramento, California

www.yorklawcorp.com

Can the Consumer Ever Win?

             Somewhere in your cell phone or credit card contract, buried in the fine print is a mandatory arbitration clause which waives your right to a jury trial and instead binds you to arbitration if there is ever a dispute.  You may not have known that you have waived your right to hold a corporation accountable through a jury trial and instead agreed to arbitration because you did not read the lengthy contract.  Usually these sneaky arbitration clauses are buried somewhere in a tiny paragraph in the middle of the massive contract.  Now, these arbitration clauses are being quietly added to nursing home contracts.  The Nursing Home Industry is now including these pre-dispute mandatory arbitration clauses to their admission contracts and you need to know what you can do to protect your loved ones. 

              As you are making the difficult decision of putting a loved one into a nursing home, you could also inadvertently sign away you right to go to court to for neglect or abuse of your loved one.  With the deadly arbitration clause, if there is the death or injury of a loved one, you would be required to fight your dispute in a secret and binding arbitration process that favors the Nursing Home Industry.  When you signed the admission agreement with the nursing home you agreed to have any dispute heard by an arbitrator chosen by the nursing home, to have the proceedings held in private, and for the decision to be unrecorded.  (This has only changed in California which now requires decisions by arbitrators to be recorded.  However, arbitrations still favor the nursing homes, not the patient or their family). 

            If you bring a matter before an arbitrator or panel of arbitrators you are most likely going to lose.  Since these private arbitrators are repeatedly hired by the Nursing Home Industry, it is highly likely that they are going to rule in favor of the nursing home in order to get hired again.  Nursing homes and other large companies are going to hire arbitrators that they know to favor their side.  A recent NPR broadcast highlighted a study claiming that 94% of consumers lost in arbitration and those arbitrators that ruled in favor of the consumer were typically not re-hired by the company for future arbitrations.  This statistic is not wholly for nursing homes but gives a good indication of ones chances of prevailing in an arbitration proceeding. 

           WARNING:  Be aware that you do NOT have to sign any nursing home admission agreement!  The nursing home cannot refuse to admit your loved one into their facility just because you do not sign the contract that contains an arbitration agreement.  By no means are you required to accept an arbitration clause in a nursing home contract.  What should you do if you have put a family member in a nursing home?  If you do not want to enter into an arbitration agreement, carefully read the nursing home’s Admission Agreement and feel free to cross out or decline the arbitration clause.  Please understand that you do not have to initial or approve of any arbitration clause contained in a nursing home Admission Agreement.  You can protect your right to a jury trial should the nursing home neglect or abuse your loved one. 

            The York Law Corporation is very aware of the fact that many companies are taking advantage of consumers by attempting to sneak in arbitration clauses into their agreements.  We are experienced in nursing home admissions agreements.  We are familiar with nursing homes trying to include mandatory, binding arbitration clauses to hold secret and unrecorded sessions that are inherently unfair to the consumer.  We believe that cases of elder neglect need to be heard by a jury and be put on public record.

If you are worried about entering into an arbitration agreement and a resident of Northern California, the York Law Corporation will review nursing home admission agreements for FREE to ensure that you do not sign away your right to go to court.

York Law Corporation

Sacramento, California

www.yorklawcorp.com