But a breakthrough federal rule has emboldened growing numbers of elderly residents and their relatives to challenge these clauses. In 2016, federal regulators barred the 15,000 long-term care facilities that receive Medicare and Medicaid funds from requiring that residents enter into arbitration before a dispute arises, known as “pre-dispute” arbitration. The rule has been blocked in court, but the government’s case is now being cited as evidence that many such clauses are invalid and that victims of maltreatment have a right to a day in court.
“More and more people are waking up to the essential unfairness and lack of transparency of these clauses,” said Eric Carlson, directing attorney of Justice in Aging, a legal advocacy group in Washington, D.C.
A spokesman for Lighthouse’s Eden Prairie-based parent company, New Perspective Senior Living, declined to discuss Maurer’s case but noted that arbitration agreements are widely used across all types of businesses, including senior care. “Arbitration benefits both parties in dispute resolution by avoiding costly and lengthy court cases,” said Doug Anderson, the firm’s vice president of marketing.
No 911 call
It was a crisp September afternoon in 2014 when Maurer arrived at her father’s room at Lighthouse. She was shocked by what she found. Her father, a florist who just a week earlier had been laughing and stomping his foot to old-time music, had turned ashen and was vomiting in plastic cups, she said. Photographs from that day show that his stomach had swollen like a balloon. “I knelt by his side, grabbed his hand and said, ‘Dad, I’ll get you to a hospital,’ ” Maurer said. “But I knew in my heart that he was dying.”
Despite Seeger’s visible suffering, the staff had not called for emergency help. Maurer called 911, and on the ambulance ride to the hospital, Seeger rated his pain as a “10 out of 10” on the pain scale, state records show.
“I was horrified,” Maurer said. “I never want to see another human being in that much pain for as long as I live.”
Investigators from the state Department of Health later found multiple lapses in Seeger’s care. Despite a history of hernia problems, staff at the senior home failed to follow a physician’s instructions and notify medical professionals immediately if he had any pain or tenderness in the groin area, state records show. On the evening and overnight shift before he died, Seeger complained of stomach pain and vomited; but such symptoms were not promptly reported to a nurse, state investigators found.
“The cumulative effect of these omissions represent a system failure,” the state concluded.
No slam-dunk case
But when Maurer sought advice on how to pursue what she thought would be a “slam dunk” legal case, she learned of two conflicting arbitration provisions tucked inside the facility’s 36-page residency agreement. Maurer had signed the document in 2010, but alleges that no one explained the clauses in the rush to admit her father. When Maurer asked for time to review the agreement with an attorney, she was told that the family would “lose the apartment,” she said. “It was take it or leave it.”
At an Anoka County court hearing, Maurer’s attorney argued that a contract signed “under duress” is not enforceable. “Lighthouse had all the bargaining power when they said, ‘You must sign and you must sign now,’ ” said the attorney, Suzanne Scheller. “This agreement should be invalidated.”
An attorney for New Perspective pointed to the terms of the arbitration clause, which explicitly covered “any dispute arising out of the services, treatment or care” of the resident. The provision applied to a broad range of possible disputes, including eviction, personal injury and wrongful death. The attorney denied that Maurer had been under duress, saying the family was free to pursue other options. “There was no immediacy here,” she said. “The arguments on duress are thin at best.”
‘I needed answers’
In Minnesota and nationally, more attorneys are seeking to throw out arbitration clauses, particularly in cases where there is evidence that elderly residents were coerced into signing the contracts. In a recent case, the Kentucky Supreme Court refused to enforce arbitration agreements in three wrongful-death cases, ruling that legal representatives of nursing-home residents lack the authority to waive another’s “God-given right” to a jury trial.
Angela Menk of Nicollet, Minn., is among those seeking to challenge an arbitration provision. Recently, Menk’s mother, Sharon Sperl, who was 71, requested that an on-duty nurse at the Good Samaritan Society nursing home in Winthrop call 911 because she was short of breath and unable to breathe.
Instead, the nurse gave Sperl a nebulizer and sent her to bed without checking her vitals or periodically monitoring her, police records show. A few hours later, Sperl died before an ambulance could arrive, the police found. Sperl’s death was all the more surprising because she was only scheduled to be at the Winthrop nursing home for 30 days for rehabilitation from toe surgery, and was scheduled to return home.
“They kept telling me that she ‘died peacefully,’ ” Menk said. “But I needed answers and wasn’t getting any.”
When Menk reviewed the medical records, she was surprised to discover that her mother had signed an arbitration clause. Menk and her attorney, Joel Smith of Plymouth, said they plan to contest the provision because it was never adequately explained. She also wants the opportunity to expose any maltreatment by the facility in a public forum — as opposed to arbitrating the case before a private arbitrator in a closed setting.
“Arbitration would sweep my mother’s death under the rug, so no one would ever find out about it,” Menk said.
“I’m not going to let that happen.”