Earlier this month we discussed the unfortunate U.S. Supreme Court decision which may make it tougher for local residents to challenge mandatory arbitration clause agreements. The case, Marmet Health Care Center Inc. v Brown et al. essentially acts as a bar to plaintiff arguing that these agreements violate public policy. Our Illinois nursing home neglect have often argued, and courts often agree, that hiding these clauses inside detailed admission documents-usually signed when families are in crisis mode-runs counter to the immense public interest in legal fairness. However, this argument was struck down by the high-court in the recent case. The Supreme Court explained that the pre-dispute arbitration agreements can still be challenged on contract principles, but this public policy argument will no longer be heard. Of course, because the decision came from the U.S. Supreme Court, its holding binds courts across the country.
This week the State Bar of Wisconsin published a helpful article discussing more about how the case may affect nursing home neglect lawsuits. At a basic level, the ruling makes it even more important for local families to be aware of the risks of signing these agreements. Each Chicago nursing home neglect lawyer at our firm recommends that no family sign these mandatory clauses, because they will make it incredibly difficult for families to demand fair accountability and redress in the case that their loved one is harmed by misconduct while at the facility. Families must know that they are giving up their right a jury trial when signing these agreements. Unfortunately, even before this ruling, arbitration clauses were on the rise as nursing home conglomerates sought to insulate themselves from accountability. It is likely that companies will use them much more now that they have a better chance of being enforced in court.
As with all decisions which impact large, powerful, and deep-pocketed interests, proponents claim that the bill reinforces the “power to contract.” Of course, that is nothing more than a convenient way to smooth over the fact that the clauses are foisted upon unsuspecting community members in times of immense stress, taking away basic legal rights without most having any idea.
After this ruling, our Illinois nursing home attorneys believe that it is even more important for federal legislation addressing these issues to be passed. The Arbitration Fairness Act (AFA) has been introduced by some members of the Senate which would protect families in these situations. The Marmet decision affects local cases, because it was a decision that clarified the rules in the current measure which governs these situations-the Federal Arbitration Act (FAA). The FAA essentially supersedes state law and thereby makes it impossible for courts to void these agreements on public policy grounds. The AFA would seek to change that old law, making the Supreme Court decision in Marmet ineffectual.
The civil justice system plays a crucial role in improving nursing home care for everyone by demanding accountability and redress when errors are made. It is vital that arbitration clauses not be allowed to promulgate, minimizing the accountability function of open and honest information being shared in the courtroom.
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