NEWS - SUPREME COURT BRIEF
RALEIGH, NORTH CAROLINA PERSONAL INJURY LAWYER
SUPREME COURT OF NORTH CAROLINA
FOURTEENTH DISTRICT
NO. 549A01
JAMES DEWEY MILON and
ROSA P. MILON,
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Plaintiffs-Appellants
From Durham County
v.
DUKE UNIVERSITY; DUKE UNIVERSITY
HEALTH SYSTEM, INC.; PRIVATE
DIAGNOSTIC CLINIC, LLP; PRIVATE
DIAGNOSTIC CLINIC, PLLC; DAVID F.
PAULSON, M.D.; PETER S.A. GLASS,
M.D.; and MARY CRODELLE, CRNA,
Defendants-Appellees.
No. 99CVS5666
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BRIEF OF AMICUS CURIAE
FRIENDS OF RESIDENTS IN LONG TERM CARE, INC.
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QUESTION PRESENTED FOR REVIEW
Whether arbitration agreements should be strictly construed in the healthcare context?
STATEMENT OF THE CASE
Amicus Friends of Residents in Long Term Care, Inc. (FOR) adopts the statement of the case of plaintiffs-appellants James Dewey Milon and Rosa P. Millon.
STATEMENT OF THE FACTS
Amicus Friends of Residents in Long Term Care, Inc. (FOR) adopts the statement of the facts of plaintiffs-appellants James Dewey Milon and Rosa P. Millon.
ARGUMENT
ARBITRATION AGREEMENTS SHOULD BE STRICTLY CONSTRUED IN THE HEALTHCARE CONTEXT
Arbitrations and other forms of dispute resolution have become increasingly popular as a means of reducing demands on the court system, and as a more efficient way for litigants to resolve their differences. These processes are practically and morally effective at reaching those goals only when they are brought about by agreement of the parties. However, when arbitration is unfairly demanded and imposed on one party by another, their use must be suspect or banned, especially in the healthcare context. Our legislative and judicial branches are suspicious of waivers of constitutional rights, including the right to access to the courts and the right to a jury trial, especially when that waiver is committed by an agent rather than the person actually affected.
Due to the problems peculiar to the consideration of arbitration as a dispute resolution technique in healthcare, in 1997 the leading associations involved in alternative dispute resolution, law, and medicine collaborated to form a Commission on Health Care Dispute Resolution. The Commission, comprised of the American Medical Association, the American Arbitration Association, and the American Bar Association, adopted as their mission to determine and report the most effective use of arbitration and other techniques in the private healthcare environment. Their report is attached hereto as Exhibit A. The Commission unanimously recommended that in disputes involving patients, binding forms of dispute resolution should be used only where the parties agree to do so after the dispute arises. The Commission also recognized that the agreement to use arbitration should be knowing and voluntary, which assumes that full and accurate information is provided to the participants or patient, and agreed that participation in alternative dispute resolution or arbitration should not be a requirement for receiving care. The Commission also recommended that their findings be used to provide guidance to legislative and regulatory bodies considering the establishment of standards governing the use of alternative dispute resolution in the health care environment.
FOR adamantly supports the conclusions of the Commission and urges this Court to adopt those same guidelines when interpreting the issues in this case, and to strictly construe arbitration provisions in the healthcare context. FOR adopts the arguments for strict construction of arbitration agreements as outlined in plaintiff-appellee's brief, and the recommendations of the Commission, because of their particular applicability in the long term care setting. FOR supports these positions for several reasons: the unequal bargaining position of the long term care industry vs. residents of facilities and their families, the lack of mutual and fully informed assent by the resident or his/her agent (generally a family member) to an arbitration provision that is signed before a dispute has arisen, and the substantial risk of increased abuse and neglect of residents without the deterrent presented by liability for wrongdoing in a court of law. This class of arbitration agreements, which is based on unequal positions, waives constitutional rights, and affects a fragile and vulnerable class of people, does not get pre-empted, and should be heavily scrutinized by our judicial branch of government in particular.
I. Arbitration provisions in contracts within the long term care setting are subject to significantly unequal bargaining positions of the industry versus the resident and family
Several factors can provide the impetus for an elderly person to become a resident of a long term care facility. Generally, the person has suffered a stroke, a fall resulting in severe injury, or some similar medical condition that renders them less than fully able to completely manage their health and well-being. Often, the condition requires a hospital admission, and indeed the vast majority of admissions to long term care facilities come straight from a hospital. In such situations, due to regulations and certificate of need procedures (which result in quick discharge from the hospital), and the limited availability of long term care beds within any given geographical area, the families of the elderly are forced to make quick decisions about where to place their loved one, and often have options of placement in only one or two facilities without much, if any, input into the process. This situation renders their ability to negotiate with a particular facility meaningless, and leaves the family subject to duress, explicit or otherwise, to sign whatever forms are necessary to get their loved one placed and admitted. For instance, FOR receives calls from families who do not want their elderly loved one in a particular facility, but are forced to accept the placement for various reasons beyond their control. Such circumstances too often reduce the elderly and their families to mere pawns in the long term care setting, who ultimately are forced to operate under rules and parameters which they do not understand, and cannot influence. The Commission feared that imposition of an arbitration provision, and resulting waiver of a right to access to the courts and the right to a jury trial, under circumstances such as these, and especially before any dispute has arisen, would be a dangerous departure from the moral and legal duty owed to patients/residents in a healthcare setting. For these same reasons, FOR strongly urges this Court to follow the recommendation of the Commission to avoid the applicability of arbitration provisions before any dispute has arisen, and to scrutinize these provisions closely in a healthcare context.
II. Following the recommendations of the Commission would insure the mutual assent required for a contractual arbitration provision to be enforceable.
In the case at bar, and in the healthcare setting overall, admission contracts to a healthcare provider, and long term care facilities in particular, are not purposeful, negotiated documents between the facility and the resident or family, but are form documents drafted by lawyers of the facility, which often is owned by a much larger, often nationwide corporation. The elderly and their families therefore have no ability to control the terms of these contracts, and as stated above often sign these contracts under express or implied duress. In addition, similar to the plaintiffs in the case at bar, family members of residents are often uneducated about the legal and practical ramifications of the documents they are signing, and rarely enjoy a complete and accurate explanation of the full effect of the contract. Very rarely, if ever, do the elderly or their families have meaningful access to legal counsel to understand that the admission contract contains a provision that waives their right to a jury trial regardless of extent of the abuse or neglect suffered at the hands of that same facility. These circumstances result in a disastrous potential for disparate levels of power between the patient/elderly resident or family and the facility. FOR urges this Court to level the playing field between the long term care industry and a group of citizens, the elderly, who so desperately need the protection of the court system.
III. Adoption of the Commission's recommendations regarding arbitration provisions provides a deterrent effect to neglect and abuse in the long term care setting
The troubled state of the care being afforded to our elderly population in this state and across the country cannot be denied. FOR constantly witnesses the untoward and disturbing results of substandard care in the long term care setting. Inadequate staffing levels resulting in chronic physical abuse, malnutrition, infected bedsores, and improper use of restraints are examples of constant reminders of the need to retain every possible protection for our elderly. Our constitutional guarantee of access to the courts and the right to a jury trial remain founded in principles of accountability of a person or entity that commits wrongdoing and injures another, especially when done for the purpose of increasing profit and at the expense of patient/resident care. The Commission recognized that fact, and determined that such a consequence remained a viable factor to be included in any analysis of the appropriateness of alternative dispute resolution, and arbitration in particular. Our elderly represent the most vulnerable of victims, unable to fend for themselves or obtain redress when wronged. The court system, and jury trials specifically, remain a feared consequence for the long term care facility that intentionally or negligently does not fulfill its moral and legal duty to serve those who are so frail and dependent. Removal of that consequence substantially increases the likelihood that substandard care will worsen.
CONCLUSION
FOR urges this Court to leave intact all possible protections of patients in the healthcare setting, and residents in long term care in particular, by voiding the application of binding pre-dispute arbitration provisions in an environment so fraught with unequal bargaining positions, and so in need of oversight and protection for our elderly citizens.
This the ___ day of December, 2001.
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Thomas W. Henson, Jr.
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