Published on:

Mandatory Arbitration Provisions Still an Issue

We have seen time and again how abuse and negligence can cause injury or even death to a nursing home resident, and unimaginable grief and pain for family and loved ones of the resident. The right to take civil action is also vital for families to recover damages and gain further justice for injury to a loved one or the loss of a loved one. However, many nursing homes include arbitration provisions in the contracts residents or their families sign for admission, which effectively would send any dispute between them and the nursing home to an arbitration proceeding.

This is an alternative form of dispute resolution, which entails different rules and a different forum than a court of law, and the outcome is considered binding under law. Many families do not truly understand this, and are not truly informed when signing the paperwork, only to find out they have waived access to a court of law and a jury of their peers when they desperately need it. Additionally, patients often are in need of care right away, and families are more likely to sign the paperwork out of urgency to make sure a loved one gets into the home.

A Continuing Problem

In more recent news in Oklahoma, it was reported that, according to the state’s long-term care ombudsman for the Department of Human Services, a significant number of the over 300 nursing homes in the state include provisions in admission paperwork requiring that the resident and family agree to binding arbitration in the event of a dispute. In the past, the state repeatedly warned nursing homes that admission to a nursing home could not be conditioned on the acceptance of an arbitration provision. Even the state’s Supreme Court upheld laws prohibiting the use of arbitration agreements specifically under Oklahoma law – specifically the state’s Nursing Home Care Act. And yet, nursing homes continue to use these provisions seemingly against the law, while some in the state legislature try to change the law and thus allow for use of arbitration agreements at the behest of lobbyists on behalf of health care providers in the state.

The question of mandatory arbitration provisions in nursing home admission contracts is not new. It has been addressed in other states. In some situations they have been found to be valid and families are forced to go to this binding alternative dispute resolution. In some situations, such as in a Pennsylvania state court last year, an arbitration provision was declared to be misleading and overreaching where plaintiffs lacked informed consent, because they could not be expected to truly understand that they were giving up their rights to a traditional jury trial in favor of an unfamiliar process that tends to skew more in favor of nursing homes. Furthermore, a Florida court struck a portion of an arbitration agreement that capped damages, which violated public policy, and a New Mexico court invalidated an arbitration agreement as one-sided in favor of the nursing home.

Where access to the court system is so vital for nursing home residents and their families, it is unconscionable to coax them into waiving that right by agreeing to arbitration. It is unlikely that most families would be informed enough to consent to a more obscure process, under different rules, that only arbitration-focused lawyers really understand (thus advantage to the nursing homes). Ultimately, families should not be required to waive their civil judicial rights and access to a jury trial, and nursing homes should not ignore laws actually on the books, either.

See Related Blog Posts:

Nursing Home Arbitration Agreements Deemed Invalid

Review Panels for Nursing Home & Med Mal Claims?