Deciding how to care for an aging loved one likely will be one of the most difficult and emotional decisions you will ever have to make. Our North County nursing home lawyers know that caring for aging family members can cause an enormous amount of stress and emotional turmoil. For example, there often are many daunting tasks involved in caring for an parent, including: taking over a parent’s finances, making medical appointments, navigating through a maze of insurance coverage and claims, and even finding space in your home or locating an appropriate long-term care facility. Unfortunately, a recent Supreme Court opinion may make selecting a nursing home for your loved one even harder.
According to a new high scout decision, nursing homes may freely use binding arbitration clauses in their contracts with residents. Such agreements bar elder abuse victims and their families from suing in court, even in cases involving the most egregious and extreme instances of abuse or neglect. The decision, Marmet Health Care Center, Inc. v. Brown (2012), overturned a ruling by the West Virginia Supreme Court, which allowed families to bring lawsuits against nursing homes despite the existence of binding arbitration agreements. Plaintiffs in three wrongful death suits against West Virginia nursing homes sought compensation despite the fact that they or their loved ones had signed an agreement to settle disputes in arbitration, instead of courts, when seeking to admit their loved ones to a nursing home. As is often the case, such binding arbitration clauses typically are buried in contracts and most people do not understand the implications of agreeing to them. Agreements containing binding arbitration clauses could even be one of many pages included in a pile of paperwork required by a nursing home prior to the admission of a new resident.
The Court’s decision was based on the 1925 Federal Arbitration Act, a law providing businesses with almost unlimited power to include arbitration clauses in contracts. The problem with arbitration is that it puts too much power in the hands of businesses, which typically do not have the interests of consumers at heart, even vulnerable consumers such as soon-to-be nursing home residents. Arbitration proceedings often are secretive and expensive for consumers to pursue. Monetary damages awarded in favor of a plaintiff are generally lower in arbitration than those in court.
Arbitration clauses historically have been very common in credit card and cellular phone service contracts but less so in nursing home agreements. In the nursing home context, their presence is particularly troubling because the health and lives of California seniors is at stake.
What you can do:
• Carefully examine any and all nursing home paperwork, including contracts, before signing or permitting a loved one to sign. If a contract contains a binding arbitration clause, negotiate with the nursing home and demand they remove it.
• Consider speaking with a San Diego, San Bernardino nursing home neglect lawyer or other nearby professionals about any paperwork presented to you by a long-term care facility.
The grounds upon which to challenge the validity of an arbitration clause usually are very narrow, so it is best not to bind yourself in the first place if you think there’s a chance you would rather bring your claims in court if a problem ever arises. Please consider consulting a qualified professional if you have concerns about agreements presented to you by a San Diego nursing home.
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