The Richmond Register

January 7, 2014

Trial starts in nursing home arbitration dispute

By Sarah Hogsed
Register News Writer

RICHMOND — A Madison County jury is being asked this week to decide whether a Berea woman had the capacity to understand an arbitration agreement she signed when she was admitted to a local nursing home in 2011.

Gary Newby, the son and administrator of Nora E. Chapple’s estate, is suing Extendicare Health Services Inc., the former operator of Kenwood Health and Rehabilitation Center, in Madison Circuit Court. Newby alleges in the lawsuit filed in 2012 that Chapple suffered poor care and negligence from the date of her admission, June 2, 2011, to her death Aug. 15, 2011.

In May 2012, Extendicare announced it was leasing all 21 of its Kentucky nursing homes to a third-party operator, stating in a news release that “the combination of a worsening litigation environment and the lack of any likelihood of tort reform in the State of Kentucky has made this the prudent decision for our company and unitholders.”

Extendicare also once operated Madison Manor nursing home.

The Newby lawsuit is one of 14 currently pending against Extendicare in connection with care residents received at its Richmond facilities. The oldest pending lawsuit was filed in 2010.

However, the jury empaneled Tuesday is not being asked to make any determinations about Chapple’s care. Rather, the question is whether the two arbitration agreements Chapple signed prior to her death are valid.

Nursing homes often ask that incoming residents, or their legal representatives, sign an agreement that requires them to take any care disputes to a professional arbitrator instead of filing a lawsuit in state court. Such agreements are voluntary in Kentucky, and residents cannot be denied admittance if they decide not to sign the contract.

Chapple “suffered excruciating pain” June 3 during her ambulance transfer from a Lexington hospital to Kenwood, said attorney Brian Jasper, who is representing Chapple’s children, during opening statements.

She was suffering from a fractured pelvis caused by a May 3 fall, and she was being sent to the nursing home for rehabilitation. Jasper said the woman was prescribed several pain medications and a muscle relaxer in the hours before her ambulance ride.

Jasper also said that Chapple’s doctor noted in the woman’s records that she was suffering from severe depression.

Soon after she arrived at Kenwood, a nursing home worker presented her with 30 to 40 pages of documents for her to sign, including the five-page arbitration agreement. Chapple signed all the paperwork while none of her family members were present, Jasper said.

Chapple was able later to leave Kenwood and go back to living at home, but she had another fall in late July that resulted in a second hip fracture. She returned to the Kenwood, again in pain, where she signed the second arbitration agreement, Jasper said.

She died a few weeks later on Aug. 15 at the age of 80.

“Did she have the capacity to understand these arbitration agreements on those dates?” Jasper asked, adding that would be what the jury must determine.

Jasper is an attorney with the firm of Wilkes & McHugh, P.A., which has offices in Lexington and three other states. The company’s website states its attorneys are “pioneers” in nursing home abuse litigation.

Lexington defense attorney J. Peter Cassidy III told the jury that Chapple’s physician, who had treated her for 10 years, would testify that she did not suffer from dementia and had been living independently up until her first fall in May 2011.

“She was her own boss,” Cassidy said.

Cassidy also said medical records show that Chapple had been taking pain medications for years to deal with osteoporosis and arthritis, and was aware of the medications and dosages she took, according to her doctor.

The paperwork associated with Chapple’s nursing home admissions will show that she was able to answer questions clearly on both dates, and testimony from the nursing home worker who filled out the documents with her will be presented to the jury, Cassidy said.

Finally, Chapple signed other documents, such as checks and a legal document turning over power of attorney to her son, between May 2011 and her death that August, Cassidy said. He argued that if she was capable and competent to sign those items then she was competent to sign the arbitration agreements.

The trial will continue today at 9 a.m. with testimony from family members and medical experts.



Sarah Hogsed can be reached at shogsed@richmondregister.com or 624-6694.