Nursing Home Arbitration Clauses: A Dayton Family Kept Its Right to a Jury (Westerfield v. Three Rivers)

Published March 22, 2013 · Ohio Appeals Courts

Michelle Westerfield sat in a nursing home admissions office in March 2010 and was handed eighteen documents to sign for her father. The whole process took twenty minutes. Somewhere on page four of the first form was a clause sending future disputes to binding arbitration. Minutes later, when the admissions employee presented a separate arbitration agreement, Ms. Westerfield refused to sign it and took it home. The facility admitted her father anyway. He died of sepsis thirteen days later.

When the family sued, the nursing home argued that the clause on page four meant they had given up their right to a jury. The Montgomery County Court of Common Pleas said no, and on February 15, 2013, the Second District Court of Appeals agreed. The case is Westerfield v. Three Rivers Nursing & Rehab. Ctr., L.L.C., 2013-Ohio-512 (2d Dist.), and it is a decision from our own appellate district that every family with a loved one in long-term care should know about.

What happened at admission

According to the court's opinion, John Desmond Jr. chose Three Rivers for rehabilitation after a hospital stay because his wife was already a resident in the facility's Alzheimer's unit and he wanted to be near her. The next day, his daughter was asked to come in and complete the paperwork.

The first document was a five-page admission agreement. Its "Resolution of Disputes" section said that claims alleging a violation of a resident's statutory rights "shall be settled exclusively by binding arbitration." The employee gave a quick summary of the form but did not point out that clause. Ms. Westerfield signed without reading it.

The employee then presented a stand-alone "Agreement to Resolve Disputes by Binding Arbitration." Ms. Westerfield refused to sign it. The employee was, in the court's words, "fine with it." The rest of the admission continued, Mr. Desmond was accepted as a resident, and no one mentioned that the family had already agreed to arbitration a few minutes earlier.

Within days Mr. Desmond developed severe diarrhea. He was transferred back to the hospital on March 29, diagnosed with hypovolemic shock and sepsis, and died on April 1, 2010.

What the court decided

The court of appeals was candid that, read alone, the signature on the admission agreement would have bound the family. Ohio law does not excuse people from contracts they failed to read, and the court said so. But a contract is not just a signature on a page. It is a meeting of the minds, and the parties' conduct after signing can modify or replace what they signed.

Here, the trial court found, and the appellate court accepted, that "within seconds of signing the Admission Agreement," Ms. Westerfield made it clear she had not agreed to arbitrate claims about her father's care. The facility heard that, accepted her refusal, and admitted him anyway. Both sides walked out of the room understanding that there was no agreement to arbitrate. In the court's words: "Three Rivers cannot now enforce Westerfield's initial agreement to binding arbitration."

The court did not need to decide whether the clause was unconscionable or whether federal arbitration law preempted Ohio's rules. The facility's own conduct settled the matter. The wrongful-death and nursing-home claims will proceed in court, in front of a jury.

Why a jury trial matters in a nursing home case

Arbitration is a private process in which a hired arbitrator, often a lawyer or retired judge, decides the case instead of a jury. It is usually confidential. The rules of evidence are relaxed. The right to appeal is very limited. The arbitration provider is typically chosen by the facility, and the facility is a repeat customer.

For a family whose parent died of an untreated infection or a preventable fall, those features are not neutral. Nursing home cases are won on the facility's own records: staffing logs, medication administration records, care plans, and incident reports. A public lawsuit gives the family full discovery of those records and the ability to depose the staff. A jury of Montgomery County residents, not a professional arbitrator, decides what the care was worth and whether the facility's conduct justifies punitive damages. As I explained in this post on Ohio's bifurcation rule in nursing home trials, the structure of a jury trial itself shapes how these cases are valued.

Arbitration clauses are not in admission packets by accident. They are there because facilities and their insurers believe arbitration produces lower awards and less public accountability.

What families should do with the admission packet

Westerfield is good news, but it is not a license to sign without reading. The family in that case won because the daughter said no out loud and the facility accepted it. The lesson is to say no deliberately.

• Ask for the packet in advance. You are entitled to time to read it. Admissions staff are often willing to send it the day before.
• Look for the words "arbitration," "binding," "waive," and "jury." They may be in a separate agreement or buried inside the main admission contract, as they were here.
• Decline the arbitration agreement in writing. Cross out the clause, write "declined" and your initials next to it, and keep a copy. If the facility presents a separate arbitration form, do not sign it.
• Ask whether admission depends on it. In Westerfield, the facility admitted the resident without the arbitration agreement. Many facilities will.
• Keep every page you signed and every page you refused. Ms. Westerfield took the unsigned arbitration agreement home. That document became evidence.

If you signed something you now regret, do not assume the fight is over. Clauses that were never explained, that were presented as a take-it-or-leave-it condition of urgently needed care, or that are lopsided in the facility's favor can still be challenged. The trial court in Westerfield found the clause unconscionable as a separate ground. Those arguments remain available in other cases.

What this means for you

If your parent or spouse was neglected, injured, or died in a Dayton-area nursing home or rehabilitation facility, the paperwork you signed at admission is the first thing the facility's lawyers will reach for. Bring all of it to a consultation. We will determine whether an arbitration clause actually binds the family, who is entitled to bring the claims (I covered that question in Wrongful Death Claims in Ohio: Who Can Bring One), and what records need to be demanded immediately.

Our wrongful death and personal injury practices handle nursing home neglect cases throughout Montgomery, Greene, Warren, and Miami Counties. The Second District has now confirmed that a family's refusal to arbitrate means something. We intend to hold facilities to it.