A New Mexico Appeals court allowed a case to move forward that alleged negligence by a nursing home operator. AARP's brief had urged this result.
Sherri Corum brought a wrongful death suit against the owner of the assisted living facility (La Villa) in which her mother, Mary Jo Hebert, resided before her death. The lawsuit argued that Hebert suffered numerous injuries (including falls), pain and suffering, mental anguish and humiliation while at La Villa. According to the complaint, the injuries led directly to Hebert's need for immediate emergency attention at the end of her life, and to her death. The plaintiff pointed to state laws and regulations establishing minimum standards of care for facilities, and to the state's consumer protections laws.
Roswell Senior Living, owner of La Villa, moved to dismiss the suit based on a mandatory arbitration provision in its admission agreement that had been signed by Hebert's husband when Hebert first applied to live at the facility.
Arbitration is a process developed for commercial disputes in which both parties have similar business sophistication, contractual leverage and access to resources. Because arbitration can be held behind closed doors, need not adhere to legal precedent, is expensive and does not guarantee the same discovery, evidentiary and procedural rights as courtroom proceedings, it is particularly ill-suited for other types of disputes. Yet arbitration clauses are showing up in an increasing number of contracts. Once confined to commercial disputes among businesses, mandatory arbitration clauses now appear in consumer credit agreements, employment contracts and nursing home admission contracts.
They are particularly problematic in these situations precisely because of the unequal access to legal and financial resources. (Consider also the emotions involved in nursing home admissions, or the leverage you have against your credit card company compared to the leverage it has against you.)
A trial court agreed and refused to compel arbitration. The nursing home appealed, but lost again on appeal
AARP Foundation Litigation attorneys filed AARP's "friend of the court" brief in Corum v. Roswell Senior Living, LLC. The brief noted New Mexico's long tradition of favoring jury trials over such closed-door proceedings as arbitration. The brief also detailed the vulnerability of people who need care in long term care facilities in the context of the admissions process, in which parties have particularly unequal bargaining power and residents lack meaningful choice.
The brief detailed the emotions, immediacy, technical complexity and competing priorities families face during a nursing home admission — when families are more likely to scrutinize the quality and range of services being offered than the fine print of an admissions contract. The nature of the nursing home admissions process, combined with the important rights prospective residents and their families are unwittingly waiving in signing agreements, have led courts around the country to look closely at the language of and circumstances surrounding the signing of arbitration clauses in long-term care contracts.
AARP's brief noted that the circumstances surrounding a nursing home admission as well as the need to protect court access for victims of nursing home abuse and neglect formed the basis of the Fairness in Nursing Home Arbitration Act that was introduced in Congress last year with strong support from AARP.
As other courts grapple with questions about arbitration clauses in a variety of situations, the New Mexico court's ruling could help shape these decisions. AARP has filed briefs in numerous cases that challenge the enforceability of mandatory arbitration clauses in a range of situations, including more and more nursing home admission contracts.
The court upheld the denial of motion to compel arbitration on the grounds that the husband did not meet the requirements of New Mexico's health care surrogacy laws. Because it stopped there, the court did not reach the issue of whether arbitration could ever legitimately be invoked by a surrogate under New Mexico law. Nonetheless, this is a win for the family and clarifies the importance of meeting all statutory requirements in electing a surrogate.