Failures in Systems of Accountability
Unlike residents of assisted living, memory care and nursing home facilities that enjoy protections afforded by licensing requirements, elderly citizens residing in independent living facilities throughout Virginia currently have no protection under established laws or regulatory processes. In the case of Diane:
- Adult Protective Services reviewed the circumstances surrounding the incident at Commonwealth Senior Living and determined its only course of action was to refer the case to the police for criminal investigation
- The Albemarle County Police Department investigated the circumstances of Diane's injuries and determined that criminal charges were not appropriate
- The Department of Social Services refused to investigate the matter, stating “the Division of Licensing does not have jurisdiction or authority over any portion/wing of a facility that is not licensed.”
- The facility residency agreement prohibited a jury trial by mandating arbitration as the sole means of dispute resolution
- Despite the contractual obligation of the facility to perform its self-described daily check-in process, the arbitrator in this matter ruled that the Virginia Consumer Protection Act was not applicable
As a result of the above, arbitration was the sole remedy. Arbitration is generally viewed as working to the benefit of defendants. Although many of the procedural aspects of arbitration are similar to those of a jury, there are notable differences.
- One or both of the parties must pay the costs of arbitration. Diane had to pay half of the arbitrator’s fees, $8,532. None of these fees would have been incurred had she been able to pursue a jury trial.
- Arbitrators are believed to make smaller awards than juries
- Arbitrators are believed to be less likely than juries to award punitive damages
In those situations where the facility has enough liability insurance to cover the amount of the arbitrator’s award, the facility suffers no consequences, financial or otherwise.