Articles Posted in Binding Arbitration

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Late last year, a Mississippi judge voted to block a ban on arbitration clauses in nursing home residency agreements. The ban, introduced by the Centers for Medicare & Medicaid Services (CMS), was intended to preserve the right to a jury trial and to encourage better care and oversight by nursing home staff. Despite the ban, victims and loved ones of those who have faced abuse, neglect, and even death are clinging to the very mention of CMS’ rule intended to ban binding arbitration clauses in hopes that it will be reinstated and breathe life into their legal battle against nursing homes.


A Daughter’s Fight for Justice

In Minneapolis, the daughter of an 89 year old assisted living facility resident who died after hernia complications in 2014 is suing the nursing home, Lighthouse of Columbia Heights, for failing to respond to obvious signs of a hernia in her father. Doctors had ordered staff to notify them if Mr. Seeger, the decedent, showed any signs of a hernia, given that he had experienced them in the past. After the staff had ignored obvious symptoms, his daughter went to visit her father, only to discover him vomiting and screaming about pain in his groin area. She called 911 and had her father transported to a hospital where he died shortly after admission. Seeger’s daughter faced a hurdle when attempting to sue Lighthouse of Columbia Heights: the family had waived their right to a jury trial by signing a 36 page residency agreement in which a binding arbitration clause was embedded. The daughter said that she asked for time to look over the agreement with an attorney but that the facility pressured her into thinking the apartment would be gone by the time she had done so. The attorney hired by the family is arguing that they signed the contract under duress, which would make the contract legally void. Lighthouse of Columbia Heights is fighting back by saying that they never pressured the family. While contracts can be tough to void, the lawsuit against the facility is being buoyed by the recent ban on binding arbitration, even with it currently stalled by the courts. In addition to the Seeger Family, many others who have debated seeking legal assistance despite signing an arbitration agreement are being filled with hope that justice might be on the horizon.

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Cisco Systems, the California-based technology company, recently received a blow when a San Francisco judge ruled that a former employee with an age discrimination suit is allowed to pursue action against the company through the courts. Upon hiring, Cisco required employees to complete a large amount of standard paperwork, including an agreement they called a Proprietary Information & Invention Agreement. The document detailed how employees should handle all proprietary information, with a statement embedded in the fifth page that says any labor disputes will be forced into binding arbitration. Upon being hired, the employee signed the agreement, along with a stack of others, assuming the document stated the obvious. After being forced to file suit against the company for age discrimination, Cisco attempted to force the woman into arbitration. Her attorney took the matter to court and a judge ruled that Cisco’s bizarre placement of the binding arbitration requirement was an attempt to conceal a controversial policy.

Obama & the Courts vs. Arbitration Clauses

In 2014, former President Obama ordered that all companies with $1 million plus in federal contracts eliminate arbitration clauses that require agreement before any conflict has happened. In other words, having an arbitration clause in new hire paperwork was deemed by the President to be illegal.

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In a move that endangers all nursing home residents, a Mississippi federal judge blocked a rule in December that would have made arbitration agreements illegal as a requirement for nursing home admission.

Arbitration agreements strip the elderly of their rights by removing their ability to file a lawsuit that can be pursued through the U.S. court system. Instead, a third party (or parties) serves as the decision maker, hearing evidence from both sides and then rendering a decision.  Arbitration is favored by nursing homes because they believe it costs less than lawsuits, which could eventually force expenses so high that they would have to close. The experienced  attorneys at Levin & Perconti believe that arbitration is a way for nursing homes to avoid full accountability for potentially negligent care of your loved ones. If you or a family member is facing the critical decision of residing in a nursing home, we urge you to not sign an agreement requiring arbitration in any instance.

 

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The American Association for Justice released a comprehensive new report entitled, “Standing Up For Seniors: How the Civil Justice System Protects Elderly Americans.” Today we will consider one of the ways in which nursing home conglomerates attempt to legally handcuff the residents in their care-forced arbitration clauses.

Most nursing home residents and their families are unaware of what it means to sign a forced arbitration clause. As part of the process to move into a facility, seniors sign many different documents. Typically, one of those documents includes a few lines that are buried in the fine print that bind the resident to “forced arbitration.” While it may not seem too important at the time, this clause often has a big impact on the rights of those injured while at a nursing home.

Nursing home administrators attempt to get residents to sign these clauses so that the nursing home will be in a superior legal position if there is ever a problem with resident care.

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An attorney for an elderly stroke victim urged a state’s Supreme Court to let her take her fraud claims against a nursing home to trial, rather than to arbitration as the health care facility is demanding. A circuit court judge ruled that the victim could not be forced to arbitrate her claims, but his decision was recently overturned by the court of appeals. The woman suffered a stroke in September 2005 and states that the nursing home delayed filing her Medicaid application so it could continue charging her a higher daily rate for several months. The delay eventually cost her more than $70,000. She also alleged that a nursing home employee put her in touch with people who tried to buy her home for far less than its value. Currently, Illinois is trying to pass legislation that bans binding arbitration in nursing home contracts. Binding arbitration clauses compel unwary purchasers into forfeiting their right to their day in court. To read more about the binding arbitration clause, please click the link.

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Lawmakers and consumers testified before a House subcommittee, calling for new legislation restricting the ability of companies to force customers into mandatory binding arbitration when disputes arise. The new legislation will help protect elderly access to the courts in cases against nursing homes. Congress is considering two different pieces of legislation that would restrict forced arbitration clauses contained in many of the nursing home contracts residents must sign in order to register. Congressman Henry Johnson has introduced the Arbitration Fairness Act, which will prevent all pre-dispute arbitration clauses could be considered “forced” due to economic and social needs. Representative Linda Sanchez has introduced the Fairness in Nursing Home Arbitration Act of 2009, which would nullify any clauses contained in admission agreements that prevent residents or family members from filing a nursing home negligence lawsuit. The problem is that arbitration clauses have become de facto mandatory in many nursing homes. Desperate families oftentimes sign anything in order to receive proper care for their loved one. Contact your Congressman today in order to support the nursing home legislation. To read more about the nursing home legislation, please click the link.

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Nursing Home Residents are often asked to signed nursing home contracts that contain mandatory arbitration clauses. When a person signs an arbitration clause they are unable to sue the nursing home even if they are a victim of nursing home abuse. Residents are oftentimes very nervous and busy when they enter a nursing home, and do not have the proper time to review each individual aspect of the contract. Forced arbitration clauses are buried into the fine print of contracts and terms of agreements of the nursing home. However, there is hopeful legislation pending in Congress that will allow victims of nursing home abuse to be able to sue their nursing home. The Arbitration Fairness Act would disallow employers and companies from using forced arbitration in civil rights, employment, consumer or franchise disputes. Ask the members of Congress to support the Arbitration Fairness Act, which will end the practice of forcing employees and consumers to sign away their rights to legal protections and access to courts. To sign the petition today, please click the link.

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Binding arbitration clauses are becoming increasingly more common in society, especially in nursing homes. Many nursing home lawyers are finding that nursing home residents and their families are being faced with mandatory arbitration clauses when they try to take the corporations to court. Unfortunately many residents and their families sign binding arbitration clauses without realizing it, and it is not until nursing home abuse or negligence occurs that the issue is ever raised. Many lawyers find it very difficult to get residents out of binding arbitration agreements. The problem is that residents are not required to accept binding arbitration to be admitted to a nursing home. However, once someone agrees to the terms, any claims, no matter how simple or complicated, are subject to arbitration. This could be alleviated with the passage of the Fairness in Nursing Home Arbitration Act, which provides that a pre-dispute arbitration agreement between a long-term care facility and a resident shall not be valid or specifically enforceable. If this bill passes many people that it will ensure that arbitration is voluntary and not coerced to resolve disputes. It will enable those who have received gross negligence at the hands of the nursing home industry to have their day in court. Please contact your congressmen, and voice your support for the nursing home legislation. To read more about the binding arbitration, please click the link.