N.J. Nursing Home Case Brings New Protections In Contract Services

EMERSON, N.J. (CBSNewYork) — A local man has a word of warning for anyone preparing to sign any documents admitting a loved one into a nursing home or assisted care facility.

As CBS2’s Alice Gainer reported exclusively Monday, the man did not realize he had signed away an important right for his sister. But a New Jersey court sided with him, and the decision could set a precedent for anyone signing a contract.

When Mary Kleine fell at Emeritus at Emerson assisted living years ago, doctors told her brother it appeared to be a considerable amount of time had passed before she was found.

“They found her in her own blood and feces, and she was totally dehydrated,” said Kleine’s brother, Frank McMahon.

The fall put the then-85-year-old in the hospital. From there, she went to CareOne at the Valley, where McMahon said she got worse.

“She contracted C. diff. She contracted a number of sores,” McMahon said.

When McMahon decided to sue both facilities for personal injury, he discovered that during the rush to get her to CareOne, he quickly initialed a page of documentation without guidance – signing away Kleine’s right to a jury trial and pushing any claim they might have to arbitration. There would be no jury and no judge.

“It requires a hearing that would be conducted in secret. It is not open to the public. The results are never published,” said Kleine’s attorney, Thomas S. Howard. “You also have to pay the arbitrator.”

But last month, a New Jersey appeals court ruled that Kleine and her attorney could take CareOne to trial. The New Jersey Appellate Division found that CareOne’s arbitration clause was unenforceable, and “other aspects of the clause suggest it may be unconscionable.”

The court found CareOne’s clause to be a one-way street.

“They could remove the case from arbitration at their decision… it was only the resident that was bound by the arbitration clause,” said attorney Craig Hubert.

Hubert is not involved in the cases, but he represents victims of nursing home neglect and has read the opinion.

Both Hubert and Kleine’s attorney agree the decision sets a precedent.

“What the decision means is that the courts must look into how this admission agreement with an arbitration clause came to be signed, and whether the person who was signing it was given all the information that a reasonable person – somebody like Frank – needed to know in order to realize what rights he was giving up, and that he was given the opportunity to say no,” Howard said.

Jon Dolan runs the nonprofit Healthcare Association of New Jersey, representing nursing homes and assisted care facilities.

The group suggests a best practice model for the right arbitration agreement “includes a separate statement in the packet that clearly says what the rights and obligations are.”

Kleine is now 91 and confined to a wheelchair.

“She has lost five years of her normal lifestyle,” McMahon said.

The bottom like, McMahon said, is to “make sure you know what you’re signing. That’s difficult, because you’re in a stressful situation. Your relative is going into some sort of medical facility, and you get a lot of these papers.

“I had no idea of the magnitude of that one sentence,” he continued.

McMahon took Kleine out of CareOne and placed her elsewhere. CareOne did not respond to calls for comment.

Kleine has a trial date set for July 18.

As for the court’s decision and the wider scope of it, the ruling could apply beyond nursing homes to other industries.

Hubert explained it to CBS2’s Gainer as there now being a map for trial courts, so that for people looking to have arbitration clauses thrown out, courts will now have to look certain factors.

Those factors include whether there was a meeting of the minds when the contract was entered, pressures of the moment the contract was signed, the sophistication level of the parties, and whether the person signing the document understands everything.

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N.J. Nursing Home Case Brings New Protections In Contract Services