Should the elderly entering a nursing home be forced to sign away their right to justice in order to simply receive the care they need?
Many lawmakers think not, and are mulling a measure that would do away with mandatory arbitration agreements for new nursing home residents. Mandatory arbitration agreements are outlawed in only a few states (which do still allow for voluntary arbitration agreements).
The federal government is now considering implementing a number of safeguards that would regulate the way nursing homes present arbitration agreements when patients are admitted. However, 34 U.S. senators and attorneys general from 15 states say this doesn’t go far enough; they want the agreements blocked entirely.
The damaging effect they can have on victims was highlighted recently in an article published in The New York Times. In the underlying case, a son is trying to hold accountable the nursing home where his 100-year-old mother lived when she was allegedly murdered by her 97-year-old roommate, a dementia patient who was reportedly jealous and unstable. Plaintiff/ son asserts the nursing home staffers were aware of the roommate’s potential for violence and should never have allowed her to share a room with someone.
This happened back in the fall of 2009. But the following year, when victim’s son filed a lawsuit against the nursing home, defense pointed to an arbitration agreement that had been signed by the son on his mother’s behalf. Trial court judge upheld that agreement, finding the agreement was binding and the case would be decided by an arbitrator rather than a jury.
But then on appeal, his lawyers successfully argued the agreement wasn’t enforceable on a technicality. The son was invested with health care proxy, but didn’t have the authority to sign away his mother’s legal rights to a civil courtroom. That judge agreed and remanded the case for trial, which is slated to go before a jury this month.
Such challenges are becoming increasingly common because an increasing number of people have realized what they lose with arbitration.
First of all, the cost for most arbitration agreements is often split by both parties, regardless of the outcome. So whereas plaintiffs don’t pay anything to have their case heard by a judge or jury, they are responsible to cover at least a portion of arbitration costs, even if they win – and that can mean tens of thousands of dollars in losses.
On top of that, the proceedings are often private and confidential. This hurts plaintiff in two ways: First, it eliminates the power of public scrutiny, which can compel a company to do the right thing and settle for a fair amount. Secondly, it diminishes the opportunity for plaintiffs to identify a pattern of wrong-doing among the same or similarly situated defendants.
Another problem is arbitrators do not have to follow the law. They can take it into consideration, but they are under no obligation to adhere to it.
And finally, arbitrators tend to hand down decisions that are more favorable to defendants. That’s probably in no small part due to the fact these companies keep them employed. Even when plaintiffs win, their damages are often deemed much lower than what they would otherwise be if the case went before a jury.
This is why our experienced Palm Beach nursing home abuse lawyers will always look closely at the contracts signed during the admissions process to determine whether there is an argument for invalidation.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Pivotal Nursing Home Suit Raises a Single Question: Who Signed the Contract? Feb. 21, 2016, By Michael Corkery and Jessica Silver-Greenberg, The New York Times
More Blog Entries:
Perez-Rios v. The Graham Companies – Florida Slip-and-Fall Lawsuit, Jan. 31, 2016, Palm Beach Nursing Home Abuse Lawyer Blog