Someone old enough to be a consenting adult is also, presumably, someone who understands what he or she is being asked to consent to. But not in one Florida appeals court.
A recent court decision in Florida concerning a 92-year-old woman’s signature on her nursing home contract changes the basic premise of what it means to consent.
As Kaiser Health News (KHN) reports, a mandatory arbitration agreement is a common document in a package of admissions documents at many nursing homes these days. They’re often overlooked but can have an outsized impact if something goes wrong.
Signing an arbitration agreement means that if something goes wrong-the patient falls on a wet floor and breaks her hip, or wanders off the premises and gets hit by a car-you agree to bring the dispute before a professional arbitrator instead of suing for negligence in court.
Consumer advocates are not fans of arbitration agreements. They can be expensive-in addition to hiring a lawyer, the patient or family generally must pay a share of the arbitrator’s fee. Proceedings are not public, and arbitrators that have a reputation for siding with the patient usually lose their place on corporate lists of potential arbitrators. In other words, the deck often is stacked against the patient before anything bad even happens.
Promoters of arbitration agreements-typically corporations keen to avoid class-action suits and exert maximum power over individuals who buy their wares-say arbitration saves the months or years it can take to resolve a lawsuit. They never say how it also saves everyone the trouble of protecting your rights.
In the recent Florida case, Spring Lake v. Holloway, the patient had a fourth-grade education, memory problems and was increasingly confused. When she was admitted to the nursing home, she was asked to sign a typically dense contract full of legal terminology no one who isn’t a lawyer understands. It also included an arbitration clause.
The court had to address whether her signature was legally binding.
The U.S. Supreme Court has ruled that arbitration must be a matter of “consent”; parties are forced into arbitration only if they voluntarily agree to arbitrate. You can’t voluntarily agree to something you don’t understand.
The Florida appeals court didn’t dispute that the elderly woman was in no position to consent to the nursing home’s terms-it agreed with the trial court that “the contracts were so complex that she could not possibly have understood what she was signing.”
But her inability to “consent” wasn’t a problem for that court. “For better or worse,” it wrote, “her limited abilities are not a basis to prevent the enforceability of this contract.”
Here’s the court’s justification for allowing the agreement to stand, even though to the woman it might as well have been written in Swahili:
“Our modern economy simply could not function if a ‘meeting of the minds’ required individualized understanding of all aspects of the typical standardized contract that is now signed without any expectation that the terms will actually be negotiated between the parties. Without suggesting that the contract in this case is abusive in any fashion, the law must address abuses in standardized contracts by rules other than the ‘meeting of the minds.'”
Do you find it comforting that those entrusted with protecting your legal rights can force you to honor an agreement you don’t understand, simply because it’s good for commerce?
When a corporation can force an individual to agree to an arbitration clause, it is forcing a person into judicial subservience. When a court says it doesn’t matter if a vulnerable, powerless person couldn’t have understood what she was signing, the concept of consent becomes meaningless.
The sad ruling in Florida has implications for basic patient safety. Informed consent requires evidence of actual, knowing, competent consent, but medical advocates of what they call a “professional custom” standard of care ignore that by promoting standards only they understand. The fair standard for care should be a “patient’s reasonable expectations”-that’s something an informed person can understand, and a court should defend.
Another recent tale of a nursing home and an arbitration agreement involved a patient who signed the agreement and later died, allegedly through the nursing home’s negligence. The patients’ survivors sued for wrongful death. The issue the court had to decide was whether the agreement required the patient’s estate and heirs to arbitrate the wrongful death claim. The court ruled that it did because the patient signed with full mental capacity to enter into a contract.
As noted by KHN, you can avoid being forced into arbitration: Don’t sign the arbitration agreement. If you don’t, nothing happens because it’s not a condition of admission to the facility. The American Health Care Association doesn’t support requiring people to sign an arbitration agreement as a condition of admission, said a KHN source, although practices may vary at individual nursing homes.
If you do sign, then regret it, typically you have a 30-day “opt-out” period to change your mind and retain your rights to sue.
Thanks to Paul Bland of Public Justice, a public-interest law firm, for keeping us apprised of the Florida ruling and for keeping such abuses of justice front and center.