The Case for Mediating Nursing Home Cases Post-COVID

Wed, Aug 2nd, 2023 | by Miles Mediation and Arbitration | Article | Social Share

By Bianca Motley Broom

While nearly any type of lawsuit or issue can be addressed at mediation, certain types of cases are even more well-suited to mediation or other forms of alternative dispute resolution. Nursing home claims and lawsuits are a good example. The facts and legal issues at play in these types of cases make them a good fit for mediation. As a mediator of nursing home cases (along with other types of disputes), I’d like to take a closer look at what you should consider when mediating your nursing home case, and how to prepare your nursing home case for mediation.

Nursing Home Abuse and Neglect Claims: An Ongoing Issue 

Claims and lawsuits involving allegations of nursing home abuse and neglect are common. According to the World Health Organization, about one of six seniors over the age of 60 experience some kind of abusive behavior in a group care setting each year. With more than 15,500 nursing homes that are certified to receive Medicaid or Medicare caring for more than 1.4 million residents, that can mean potential claims can be in the hundreds of thousands. This situation has only been complicated by the COVID pandemic.

The Benefits of Early Mediation 

Nursing home cases are typically rife with emotions. Sometimes family members have passed away and feelings can be intense. Most of the individuals at issue in these disputes are seniors. Often, they have or had comorbidities and it can be difficult to discern if what happened to someone was the result of abuse and/or neglect or what would have happened in the natural course because of preexisting conditions.

One clear trend is that more nursing home cases are being mediated early. Most of the nursing home cases I’ve mediated lately have been pre-suit, which can be good for everyone involved. These kinds of cases involve loved ones and their care, and there is an advantage to settling these cases pre-suit to spare families pain and save all parties money and time.

Early mediation can provide an opportunity for resolution that can benefit both sides. On the plaintiff’s side, you can help bring closure to an emotional situation in a shorter time frame instead of having a case drag on for months or even years. On the defense side, you can resolve a claim or case before it gains publicity. A nursing home doesn’t want a negative reputation associated with its facility, staff, or both — or to have an already negative reputation made worse. If the case blows up, it can be a “black eye” for a facility.

Another benefit to mediating is that parties can agree on settlement terms that might not occur in a courtroom. For example, a family may want to ensure that what happened to their loved one doesn’t happen to another resident. As part of a settlement, the nursing home might commit to enhancing its training to help prevent a similar issue in the future. When plaintiffs can help shape the experiences for other residents moving forward, they may feel greater peace settling their cases.

COVID’s Impact on Nursing Home Mediations 

During COVID, many families didn’t have access to their loved ones and may not have been able to keep tabs on or help manage their care. Their loved ones may have had physical or emotional health declines during the pandemic. These declines may have occurred with or without contracting COVID or being subject to abuse or neglect. At the same time, some facilities had staffing issues because of COVID and a facility that may have been more diligent at recording keeping prior to COVID may not have been as meticulous during the pandemic. Some facilities struggled to provide the same standard of care they did before the pandemic.

Should these cases go to trial, it’s not clear how juries might respond. How does a jury consider that many facilities were closed to visitors? That a lot of facilities lost staff? How were individual jurors impacted by COVID? Even with instructions from the court, will juries evaluate these cases in the same light as they would have before the pandemic? These complications in a nursing home case raise the risk for all parties, which can make mediation even more attractive.

With pre-suit claims, parties don’t have the benefit of information that would typically be gathered through discovery, but I encourage parties in a mediation to be forthcoming. Families may have a kind of “blank space” in that they don’t know what was happening to their loved ones during COVID. Being able to see medical records from that time can help produce greater understanding.

The nature of the case matters in the potential success of early mediation, however. This is especially important in nursing home mediations.  A case in which a resident with a long-term illness who experiences a gradual decline over many months and a case where a resident sustains an acute injury are very different matters. With the latter, there is typically an event or cause tied to the injury. With the former, the resident may have other comorbidities, and it may be more difficult to determine the cause of the decline without discovery. But with mediation, there is an opportunity to get things done sooner rather than later, and it is to the parties’ benefit to always keep mediation on the table as a viable option for resolution.

Preparing for and Mediating a Nursing Home Case 

As with any mediation, preparation is key. If you’re representing plaintiffs, you need to prepare them for the fact that the defense will probably discuss the case from a very different lens, relying upon legal theories more than an emphasis on the injured party. That can seem very cold to a family that is hurting and in pain. The better prepared they are for that perspective, the better.

From the defense perspective, making sure there is space in a mediation to acknowledge and appreciate that the at the heart of the dispute is a deeply cared for, treasured individual. Also, in addition to having a claims adjuster present, it’s helpful to have someone from the facility. For a family who may feel as if their loved one has not received the care they would have hoped, having a person from the nursing home who has shared a personal connection with a resident can be a helpful bridge toward resolution.

Please avoid surprises. If you have records or exhibits you’re going to share at the mediation, let the other side know. Surprises aren’t great for anyone; it’s better to have open conversations with opposing counsel about where you think your case is, and what you know about it. I’m for full disclosure generally speaking — surprising someone at the mediation can backfire. You may not get the reaction you want, and you catch people off guard. Instead, ask the mediator if you can schedule a call before the mediation to discuss any issues or concerns you may have.

It may seem obvious, but you need to know the facts and law around your case. If information has been shared, it is essential to review it before the mediation. As a neutral, I’m always trying to make lawyers look good in front of clients and support them in terms of working the case out. This is more difficult when parties are not prepared.

Finally, it’s important to respect the emotions of the people at the mediation. When I mediate a nursing home case, I take the time to hear about the person who is the subject of the dispute, and honor and be respectful of that person, and his or her family. There is space for that in mediation and I think that helps families who may be angry, frustrated, and grieving. The goal is settling the case and creating an environment where everyone feels heard and understood helps set the stage for success.

About Bianca Motley Broom

Mayor Bianca Motley Broom has been a full-time mediator and arbitrator at Miles Mediation & Arbitration since 2017. She was sworn in as the 27th mayor of College Park, Georgia in January 2020. She is the first African-American and the first woman to be elected as mayor in College Park. Mayor Motley Broom is deeply committed to building the community College Park’s citizens deserve. She is passionate about creating more opportunities for resident engagement and collaboration. Mayor Motley Broom is also working to bolster economic development and embrace fiscally sound and sustainable practices to ensure the city’s continued growth.