Virginia: Nursing Homes – a Lawyer’s Arbitration (April 29, 2016)

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Trial is the monthly journal of the American Association of Justice (“AAJ”), formerly the American Trial Lawyers Association (“ATLA”).  Its issue for April, 2016, headlines “Our Aging Population,” and features four articles on nursing home cases, a genre of medical malpractice litigation.  Id. at 20-35.


First, “THROUGH THE HAZE” notes that “representing elderly clients with some degree of cognitive loss or impairment is increasingly common – not only in nursing home negligence cases but also in other areas of personal injury practice, from slip and falls to medical negligence.  Id. at 20-25.  Second, “Nursing Home Sexual Abuse Cases” highlights that “sexual assault is one of the most egregious examples of nursing home abuse”.  Id. at 24.


Third, “BREAKING THROUGH NURSING HOME’ FORCED ARBITRATION” elucidates that “the Federal Arbitration Act was passed at a time when Congress didn’t believe it had power under the Commerce Clause to impose this law on state counts”; that “generally applicable defenses to state contract claims can defeat arbitration clauses”; and that “when analyzing the enforce ability of an arbitration agreement, you have to focus on the arbitration agreement itself, not on the contract in which it is embedded”.  Id. at 26-35.  Fourth, “TAKING ACTION ON NURSING HOME ARBITRATION AGREEMENTS,” encourages that “proposed deferral rulemaking seeks to address forced arbitration clauses in nursing facility contracts that curb residents’ rights to access the civil justice system.” Id. at 32-33.


April, 2016 Trial also reported eight cases in its “Verdicts & SETTLEMENTS”.  Id. at 8-14.  Most notably, “Negligent driving” under “MOTOR VEHICLE LIABILITY” marquees a $10,300,000.00 2015 Missouri settlement arising out of a car crash that left the rear passenger comatose and brain-damaged, caused by the front passenger engaging a sexual act with the driver.  Id. at 10.


Also, on April 7, 2016, AAJ’s online TrialNews headlined: “Two state appellate courts void nursing home arbitration clauses for lack of authority”.  Its subheading details:  “The Arizona Court of Appeals and the South Carolina Court of Appeals both held that caretaking adult children lacked the authority to sign the arbitration agreements on their parent’s behalves and that those agreements were not binding.”


Mr. Waterman has been a member of AAJ/ATLA over three decades.  His law practice includes medical malpractice cases against nursing facilities, and currently he is handling three such lawsuits alleging wrongful deaths of high fall risk patient residents in Williamsburg and Gloucester.