Arbitrators Accused of Unfairly Favoring Nursing Home

In states across the country, there have been battles between states and nursing homes, and between nursing homes and residents or their loved ones, over the use of arbitration provisions in nursing home contracts. When a family rushes a loved one in for care, particularly when they are frail or just came out of the hospital, they are likely to sign on the dotted line relatively quickly to ensure that the patient receives their care immediately. While it is on these parties to generally understand what is in these contracts, the same cannot be said for the specific arbitration provisions. These clauses are intended to require nursing home residents or their loved ones to waive their rights to take legal disputes with the facility to a jury trial in a court, and instead submit to binding arbitration, which is an out-of-court alternative dispute process.

While there have been conflicting decisions as to the validity of such contractual provisions as jurisdictions differ and certain provisions are considered on a case-by-case basis, some court shave found this mandatory arbitration to be a broad and ambiguous requirement which residents and their families, unless well-trained lawyers, could not impliedly or expressly consent to because they cannot truly understand the scope of what they are agreeing to waive. It is generally feared that arbitration provisions favor nursing homes who can hire high-powered expert attorneys, and because arbitration involves a separate set of rules, and the decision is made by one or a few arbitrators, as opposed to a jury of peers as contemplated by the U.S. Constitution.

Legal Questions Remain

Not all such provisions have been invalidated, and it is a budding legal question. There is one case out of Florida, however, that could certainly turn nursing home residents and their families against arbitration clauses, and should serve as a warning to those to be wary of the contracts they sign with nursing homes. In the Tampa area, a nursing home resident died after suffering from open wounds that led to sepsis, which is a type of dangerous infection that can occur when wounds and pressure sores or bed sores are not properly treated. The victim’s daughter sued the nursing home, claiming that her mother’s bed sores were not reported, and that these untreated wounds ultimately led to her death. The suit went to arbitration, however, and local news recently reported that the arbitrators may have given the nursing home’s lawyers an unfair advantage. Both parties appeared to have submitted documents they planned to use in the proceedings ahead of time as required under the rules.

However, the nursing home’s attorney also apparently procured an expert report from an outside medical expert that states the victim died from other medical problems, namely that her wounds were not from pressures sores but rather came from alcohol-related liver disease. This report was not turned over with other documents before the arbitration as required (in what is called the “discovery” process), and instead was submitted to the arbitrators. This in theory would be a problem because if the plaintiff is unaware of the report, they do not have the opportunity to counter it. The arbitrators nevertheless accepted the evidence in spite of the alleged violation of procedural rules. Now, the victim’s family is suing to have the arbitration decision overturned, which will depend on whether the nursing home’s counsel should have turned over the report.

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