Shawn Vestal: Binding arbitration unhelpful in elder care dispute

When Karen Fritz retired from a career at Rosauers Supermarkets nine years ago, she began taking care of her aging mother.

Soon, it became apparent her mom, Alice Newton, could no longer look out for herself. Her vision was failing. She was suffering from Alzheimer’s disease. Fritz moved in with her. It was a challenge, but it was also a joy, Fritz said. They planted a garden together. Fritz would put her mom in her wheelchair and take her out shopping.

“We had a lot of fun,” said Fritz, who is now 71.

But in 2009, Newton stopped sleeping well. She wouldn’t stay in her bed at night. Fritz, exhausted, turned to a new facility in Spokane Valley for help. Fritz put her mom in the center for a few days of respite care, so she could get some badly needed rest.

What happened at the Pine Ridge Alzheimer’s Special Care Center over the next six days is a matter of sharp dispute, and of a legal process that’s done virtually nothing to clarify that dispute. Fritz says her mother returned home with unexplained bruises and rug burns, complaining in consistent and specific ways about abuse and threats from caregivers at the center.

The center denies that it abused or neglected Newton and says the ailing woman made many accusations that were, on their face, untrue. A state inspector was coincidentally at the center during Newton’s stay and investigated her claims, finding that the center had improperly turned off her bed alarm and not investigated her claims quickly enough, but issued no abuse or neglect citations, said Gerald Kobluk, the attorney who represented Pine Ridge and its owner, JEA Senior Living.

“JEA Senior Living is one of the good guys out there,” Kobluk said. “They have an exceptional reputation and a spotless record.”

The case exemplifies many of the legal and personal challenges that surround an aging population, including the highly uncertain way that many claims against elder care facilities are resolved. When she put her mother into Pine Ridge, Fritz agreed to resolve almost all disputes through binding arbitration. An arbitrator awarded her $150,000 in December based on her claim of negligence but ruled in favor of the center on Fritz’s claims of neglect and abuse.

Under state law, negligence is a “failure to exercise ordinary care.” Under the Vulnerable Adult Protection Act, neglect is a “pattern of conduct or inaction” that causes harm by someone with a duty to care for a vulnerable adult.

Fritz’s attorney, Doug Spruance, calls it “an impossible ruling,” and an example of the way that binding-arbitration agreements limit a plaintiff’s ability to seek justice. He sees the finding as contradictory, the kind of thing that should be tested on appeal.

“You can’t have no neglect and have negligence,” he said. “I’ve won losers and I’ve lost winners throughout my career. I’ve never seen something that I feel so strongly would be reversed on appeal.”

The use of binding-arbitration agreements is increasing as long-term-care facilities try to hold down their liability expenses, which are steadily rising. Critics of the agreements say that many people – like Fritz – enter them unknowingly or thoughtlessly, and are signing away their rights to a jury trial or appeal.

Aon Global Risk Consulting analyzed nearly 1,500 claims involving long-term care providers between 2003 and 2011; 30 percent of claims with a valid arbitration agreement resulted in no money being awarded. In claims without an arbitration agreement, that figure was 19 percent. Claims settled without arbitration agreements also were typically much smaller.

Supporters argue that arbitration helps resolve disputes more quickly and efficiently than court cases, and that the binding nature of the rulings cuts both ways.

“Caring for Alzhiemer’s and dementia patients is, just by definition, extremely difficult,” Kobluk said. “Many of the patients don’t understand the care they’re being given. So, in their mind, someone who is trying to help them may be trying to hurt them, in some cases.”

In the Pine Ridge case, the result left no one particularly happy, and it shed exactly no light on what really happened to Alice Newton.

Fritz says her mother returned home after six days at the center covered in bruises and rug burns. “She said they tried to kill her,” she said. Fritz would find out that a nurse had reportedly discovered Newton on the floor in her underclothes early one morning, complaining that she’d been dragged and handled roughly by Pine Ridge staff. She said she’d been repeatedly threatened.

A state inspector found Newton had bruising and that Pine Ridge had failed to keep adequate records or provide a sufficient explanation of what had happened, Spruance said. However, the inspector did not make a finding of abuse or neglect.

Fritz said that she did not think her mother imagined the stories because she told them consistently to her and others. Also, there was never any explanation for her mother’s bruising when she came home. Newton died 11 weeks after returning home, after contracting pneumonia.

“She was so traumatized by this,” Spruance said. “She was sitting there saying, ‘I don’t understand how anybody could do this to me.’ ”

Kobluk said that Newton, having been placed in an unfamiliar environment and suffering from dementia, made several allegations that were objectively, verifiably not true. He said that on the morning when she was found on the floor, Newton had repeatedly left her bed, and a caregiver finally allowed her to stay out of it. This refusal to stay in her bed was common for her during that time, he noted; it was one reason why Fritz sought respite care in the first place.

The arbitrator’s ruling only deepened the mystery. How did he arrive at it? What is the basis for finding negligence but not neglect?

“I don’t know,” Kobluk said.