A lawyer notes a significant refusal recently by the U.S. Supreme Court to hear a nursing home case from Arkansas.

The court denied June 29 a request to hear an appeal of an Arkansas Supreme Court ruling in 2017 against Michael Morton, the Fort Smith nursing home tycoon, and two of his nursing homes. In the cases, Arkansas courts had held unenforceable contracts that required arbitration of claims against nursing homes.

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In seeking U.S. Supreme Court review, Morton claimed the Federal Arbitration Act should pre-empt state law. In the state court, the contracts have been invalidated when signed by family members or third-parties.  The plaintiffs said Morton never raised the pre-emption in state court.

Without comment, the Supreme Court declined to take up the case. This should help clear the field for efforts to avoid arbitration — generally viewed as favorable to defendant nursing homes — in cases where nursing home residents themselves didn’t agree to it.

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But the instant case still is to be decided. It arose from the 2014 death of Dorothy Phillips and was brought by her estate as a class action. The Arkansas Supreme Court upheld a class action for claims that the Robinson Nursing Home was understaffed, but didn’t uphold a claim for a class action on negligence claims, saying each of those should be determined individually.

The case grinds on. Just this week, plaintiffs filed a motion asserting the defendants hadn’t provided records on more than 500 residents covered in the lawsuit.

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