Should you sign this form when entering a Kentucky nursing home? ‘Absolutely not.’

When Dean Poynter entered Hillcreek Rehabilitation and Care in Louisville in 2020, he was 91 years old, legally blind, nearly deaf and mentally fogged by Alzheimer’s disease.

Poynter once ran his own furniture store. Now he wasn’t allowed to use a microwave oven.

“He couldn’t remember anything that was going on,” his son Arthur recalled in a deposition. “He didn’t remember what happened seconds ago.”

Poynter was at the nursing home because he needed a few weeks of physical therapy following treatment for a knee infection so he could regain mobility and return home.

However, Poynter died after two months. Several falls broke his hip. “Horrible and gross” bruises and bedsores covered his body, relatives said. Due to inadequate staffing, he suffered malnutrition, dehydration and “so much pain” in his final days, they said.

Poynter’s family filed a lawsuit against Hillcreek in 2021 alleging wrongful death and corporate negligence.

The nursing home’s lawyers had a surprise ready.

They said the day he entered Hillcreek, the enfeebled Poynter forfeit his right to sue. Instead, they said, Poynter agreed to settle any complaints that he or his next of kin might have through a legal process known as arbitration.

There’s a big difference between a jury trial and arbitration.

When someone sues a nursing home, the details of their complaint are filed publicly in court for everyone to see. If the case goes to trial, a jury of citizens hears the facts and decides what damages, if any, are appropriate. In most cases, plaintiffs don’t pay their lawyer any money unless they win, at which point the lawyer gets a share.

In arbitration, complaints are handled privately. Both sides split the cost — often thousands of dollars — to hire an arbitrator, usually a lawyer, who hears the claims and issues a binding decision. Even when they decide in favor of the plaintiff, arbitrators generally don’t award punitive damages, the large sums meant to punish bad behavior, as compared to compensatory damages, which tend to be much smaller.

Nursing homes prefer arbitration.

When Poynter entered Hillcreek and was handed the usual flurry of admission paperwork, it included a four-page “alternative dispute resolution agreement” intended to waive his right under the U.S. and Kentucky constitutions to sue if anything bad happened.

Because of COVID-19 health protocols, Poynter went through admission alone. His children were not allowed in the room to advocate for him.

Poynter couldn’t read the dense text of the agreement. To explain it, admission director Corinne Vastine told him Hillcreek simply would prefer “the opportunity to mediate and arbitrate instead of going to trial” if there were any problems, according to Vastine’s later deposition.

The elderly man obligingly touched a digital screen with his finger to “sign” the document.

Faced with the Poynter family’s lawsuit, Hillcreek swiftly filed a motion to compel arbitration. It spent the next two years citing the document as a legally binding contract in hopes of avoiding a jury trial.

Ultimately, that didn’t work. Jefferson Circuit Judge Susan Schultz Gibson ruled against the nursing home in April. The electronic document was not a contract by any proper definition of the word, Gibson wrote in a bluntly worded opinion.

“At a minimum, a valid contract requires an offer and acceptance of the terms of the contract. In this case, the facts do not establish even that minimum requirement,” Gibson wrote. “The defendants are seeking to bind plaintiff to an agreement in which the most important terms were never communicated to him.”

Hillcreek and its attorney did not return calls seeking comment for this story. The facility was forced to close this summer as part of a settlement with the U.S. Department of Justice after serious health and safety violations were reported by state inspectors, including a rodent infestation.

Tom Watts, president of Lexington-based Exceptional Living Centers, which owned Hillcreek, declined to comment on the Poynter case specifically or his company’s use of arbitration agreements generally.

Don’t sign it, lawyers warn

People should not sign arbitration agreements when entering a nursing home, warned several Kentucky lawyers who regularly sue the facilities on behalf of residents and their families.

“Absolutely not,” said Brian Jasper, the Prospect lawyer who represents the Poynter family.

Leave your legal options open, Jasper advised.

“If you don’t sign that paperwork, you can still choose to arbitrate the case if there is ever a dispute, OK?” Jasper said.

“I cannot imagine the scenario where, if you didn’t sign the arbitration agreement and something happened — there was neglect or abuse or something like that — and we went to the nursing home and decided for some reason that arbitration was in our best interest, I cannot imagine a nursing home saying ‘No, we would rather do this openly and publicly in the court system,’” he said.

“I don’t want to see people unconsciously waiving a constitutional right on what is, let’s be honest, one of the worst days of your life. You’re facing a mountain of paperwork where you’re just trying to make sure that you or your loved one gets taken care of,” he said.

Unlike much of the other admissions paperwork, which relates to concerns like billing and medical history, arbitration agreements are not mandatory.

But the agreements are not always clearly explained so that people without law degrees can understand them.

“I don’t think I’ve ever had one client who even knew they signed it,” said Lisa Circeo, a Lexington attorney who has won verdicts against nursing homes cumulatively worth tens of millions of dollars.

“I’ve had clients who knew they refused to sign it,” Circeo said. “But I don’t think I’ve had one client who realized they had a signed a document that said they’ve waived their constitutional right to a jury trial if something went wrong.”

Nursing homes fear bankruptcy

The state’s nursing home industry says residents should consider arbitration “as a means of effectively and fairly settling claims.”

“Arbitration is often quicker and less costly than litigation in court and provides similar outcomes for claimants,” said Betsy Johnson, president of the Kentucky Association of Health Care Facilities.

“In the end, it is up to the resident or the resident’s guardian whether to sign an arbitration agreement or not,” Johnson said. “Our long-term care facilities support the right of their residents and families to pursue legal remedies if necessary.”

“Unfortunately,” she added, “the current litigation environment in Kentucky attempts to bankrupt a critical aspect of our health care system. If skilled nursing facilities are forced into bankruptcy, many vulnerable citizens will go without much needed health care.”

Juries do, in fact, sometimes deliver eye-popping awards against the corporations that own nursing homes, once they have heard all of the evidence in a case. That includes a verdict for $20 million in Franklin County; $28 million in McCracken County; and $43 million in Hopkins County. Most of this money came as punitive damages in cases involving terrible injuries.