When entering a nursing home, residents or their family are usually presented with a stack of documents that address everything from the fees to be paid to the type of pillow the resident prefers. More than a dozen signatures can be required to complete the admissions process. Often buried within that stack is an arbitration provision, a binding contract wherein the resident agrees that any disputes over nursing home malpractice, negligence, neglect, or abuse will not be resolved in the courts, but via private arbitration. Private arbitration is simply a process where allegations of neglect or abuse are resolved by a private judge (frequently a lawyer) and not a jury.
Last week, the American Association of Justice, the United State’s largest trial bar, announced its support for legislation titled The Fairness in Nursing Home Arbitration Act, which allows the decision to arbitrate to be made after a dispute has arisen, not before in the admissions process.
According to the AAJ, the passage of this act will prevent corporate nursing home owners from manipulating the arbitration system in their favor and at the expense of nursing home residents.
Nursing home residents should not be forced to check their legal rights at the door in deference to large corporate interests”, said American Association for Justice President Kathleen Flynn Peterson. “Mandatory arbitration denies nursing home residents access to the civil justice system and stands in the way of the quality long term care they deserve. By forcing people into a costly private system, the corporation sets the rules and hand-picks the players.
I can say with experience that most people learn for the first time that they have waived their rights to a court action in favor of arbitration when they contact our office with claims of nursing home negligence. They are usually not happy about it. And clients get more upset when they learn that they have to pay for a portion of the arbitrator’s fee, which usually exceeds $250 per hour. Imagine an elderly victim of neglect or abuse being told that he or she has to pay thousands of dollars simply to seek access to justice. Now you’re getting the picture of what arbitration is all about.