The nursing home industry’s war to deny patients their day in court

by F. Paul Bland, Jr., The Legal Examiner

Elizabeth Barrow had just turned 100 years old when she was killed at Brandon Woods long-term care facility in Massachusetts. Having moved into the facility with her husband, Elizabeth was assigned a new roommate upon her husband’s passing shortly after they became residents. Lamentably, this new roommate was volatile; she had a history of conflict and propensity for psychiatric behavior, which, as Elizabeth would soon discover, was often left unsupervised by staff. In 2009, following a grisly manifestation of this behavior, Elizabeth was found with a plastic bag over her head, suffocated to death by her roommate.

Scott Barrow, Elizabeth’s son, responded the way a lot of people would: by filing a lawsuit. To Scott, a lawsuit meant that he would be given his constitutional right to a day in court. However, Scott was promptly denied this opportunity. The reason? Fine print.

When Elizabeth was first admitted to Brandon Woods in 2007, Scott inadvertently signed a forced arbitration agreement: a legally murky way of saying that all legal claims that arose with Brandon Woods— even wrongful death claims—must go through an alternative form of dispute resolution known as arbitration. Read: no judge, no jury.

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