Articles Posted in Mandatory Binding Arbitration

According to Time Magazine, in 2011, 84 year old Sister Irene Morisette, a Catholic nun, admitted herself to Chateau Vestavia, an assisted-living facility outside Birmingham, Alabama. After over 60 years of service to the Catholic Church, Sister Morisette wanted to live in a facility that could help her with daily tasks, as her knees were sore after countless hours of prayer. In the three year period from her admittance in 2011 until the night of June 23, 2014, Sister Morisette had begun showing signs of dementia and had her sister named as her legal guardian. It has not been revealed if Sister Morisette had dementia at the time she admitted herself into Chateau Vestavia, a finding that, in the eyes of the law, would be extremely significant given the horrifying incident that happened.

Upon admittance to the senior living facility, Irene Morisette signed a pre-dispute arbitration agreement, also known as a binding arbitration agreement, that was embedded in a lengthy admissions contract. The arbitration agreement prevented Sister Morisette, a woman who dedicated her life to God and the church, from suing when she was raped, presumably by a Chateau Vestavia staff member, on the night of June 23, 2014 at 87 years old. Irene Morisette believes her perpetrator was a staff member, as she had locked the door to her bedroom that night, just as she had every night of her adult life. Only someone with a key could have entered her room in the middle of the night without any forcible signs of entry.

Evidence Proves Ms. Morisette was Raped

In June, the Centers for Medicare & Medicaid Services (CMS) proposed a new rule that would allow nursing homes to require arbitration agreements as a condition of admission. A nursing home arbitration agreement is a legally binding commitment that forces nursing home residents and their loved ones into negotiations over conflicts that would normally go through the court system. Nursing home arbitration agreements remove the 7th amendment right to a trial by jury and are infamous for pushing grieving families into unfair agreements with biased arbitrators chosen by nursing homes themselves. Binding arbitration agreements are well known for allowing lesser settlements for victims of nursing home abuse and neglect while keeping tragic truths out of the public eye. Arbitration agreements allow a nursing home to continue to offer suboptimal care while still admitting unsuspecting elderly residents. The passage of such a rule would be devastating to the millions of Americans who currently reside in nursing homes and the millions that will require nursing home care in the coming years.

Sudden Change of Opinion

The recent push by CMS to pass a rule allowing binding arbitration agreements in nursing homes has been met with suspicion. Just last year, the government organization responsible for regulating nursing homes attempted to pass a law BANNING the very same agreements they’re now rallying for. The enforcement of a ban on arbitration agreements was halted by a federal judge in Mississippi. Those who fought to halt the ban? Lobbyists and industry groups with a stake in the profitability of nursing homes.

In November 2016, the Centers for Medicare & Medicaid Services (CMS) began implementing their first newly revised set of nursing home regulations since 1991. According to CMS, 1.5 million Americans call a long term nursing care facility their home, a number that is increasing year by year. With such a large volume of residents in nursing homes, coupled with the fact that for-profit companies own and operate the majority of them, CMS finally decided to tighten rules imposed on the facilities. CMS hopes that the appeal of receiving as much funding as possible from Medicare and Medicaid will encourage facilities to abide by the latest set of changes.

The Good

One of the best provisions outlined in the new regulations is the call for staff training on elder abuse and neglect, specifically on how to care for residents with dementia. Dementia in some form is present in the majority of residents at nursing homes and knowing how to properly care for patients facing this diagnosis has been an age-old problem in long term care facilities.

According to the Arizona Daily Star, for-profit nursing homes have less staffing, cut costs and are typically lower quality than their non-profit counterparts. One study published in the American Journal of Public Health found that for-profit nursing homes are 46.5 times more likely to have deficiencies than non-profit homes. Perhaps, most troubling, is that to cut costs on legal expenses, these nursing homes ask residents and their families to sign agreements which shelter the nursing homes from lawsuits. These agreements are part of the paperwork that residents and their families must fill out at the time they are entering the nursing home facility. Entering a nursing home is often an emotional and stressful time for families and yet the nursing homes are asking these families to sign away their right to sue the facility should the nursing home mistreat their loved one. The arbitration agreements provide for binding “alternative dispute resolution” (ADR) which takes disputes into a private rather than the public legal system, forces residents and their families to give up their right to a jury trial decided by their peers, and gives nursing homes alone the right to pick the person who will judge the substandard care given to its residents. Furthermore, these agreements prevent any of the nursing home’s violations, no matter how egregious, from becoming public information. When families unknowingly sign away their right to sue the facility, they likely have no concept of the degree of harm a nursing home can cause their loved ones due to nursing home abuse or neglect. Federal legislation has been proposed to invalidate these unjust and detrimental arbitration clauses. The Chicago nursing home abuse attorneys at Levin and Perconti support the proposed federal legislation and are working hard to make sure that substandard care at Illinois nursing homes will not be tolerated.

The son of a nursing home resident who was injured because of nursing home negligence supposedly was unable to have a trial because he signed a nursing home arbitration clause. However, the state’s supreme court found that since the son did not have the authority to sign a voluntary arbitration agreement on her behalf, thus he was not bound by such an agreement. The court found that since the son only had the authority to sign documents required for admission, that the arbitration agreement was not a mandatory requirement for admission. This decision could have implications for other nursing homes that allow surrogates to sign admission materials. Binding nursing home arbitration clauses limit a victim’s right to a trial after nursing home negligence. To read more about the arbitration clause, please click the link.

The elderly and their families will no longer be forced to give up their legal rights and sign one-sided mandatory arbitration clauses under new nursing home legislation introduced in the US Senate. The bipartisan Fairness in Nursing Home Arbitration Act of 2009 will prevent nursing homes from deliberately hiding fine print clauses that force seniors to surrender their rights to jury and enter an unfair and one-sided mandatory binding arbitration process. The nursing home legislation will make sure negligent nursing home corporations can be held accountable by the most vulnerable citizens. American Association for Justice President Les Weisbord stated that “This bill will prevent nursing home corporations from unfairly preying on seniors and stripping away their legal rights.” This will help victims like one who received unconscionable care from a negligent nursing corporation. The man was suffering from dementia lost 20.6 pounds without any notification to his physician or wife. The man died a month after being found severely dehydrated. His family wanted to bring a nursing home negligence suit, but learned they would be forced into one-sided mandatory binding arbitration. To support the nursing home arbitration act please contact your congressmen. To read more about the nursing home bill, please click the link.

Admitting a family member to a nursing home is a stressful emotional time. It is also a time when people should pay close attention to everything they sign. This is especially important if the nursing home demands that the patient waive his or her right to a jury trial in the event of a nursing home negligence lawsuit resulting from an injury suffered while in its care. This process is not common in nursing homes who often seek to avoid an elderly abuse lawsuit in court by having a patient or their guardian agree to arbitration. Arbitration may be helpful, but preserving your right to a jury trial is very important because it leaves that option open should a person decide to have a nursing home negligence trial. While some courts have ruled that pre-injury agreements to waive a jury trial are both unfair and unenforceable but others uphold the waiver. One such court emphasized three main factors specific to the case: the waiver agreement was not a condition of being admitted; it was a two-page document separate from the lengthier admissions contract, and there was a 30-day period to reject the waiver agreement. Allowing nursing homes to avoid jury trials before any elderly negligence or abuse occurs is bad public policy. It does not account for the differences in nursing home abuse cases. To read more about jury waivers, click the link.

A bill was introduced into the U.S. House of Representatives that will help put an end to unfair mandatory arbitration agreements. The bill, introduced by Rep. Hank Johnson (D-GA), would put an end to pre-dispute arbitration agreements that nursing home residents and their family members are often forced to sign when completing nursing home contracts. When signed, the agreement waives their rights to have a jury decide the case. For nursing home residents and their families, this bill will protect their right to take their case to court in the event that they become the victim of injury or death as a result of nursing home abuse and neglect.

Victims of nursing home abuse and neglect fare better when given the opportunity to plead their case in front of a jury. A trial by jury provides a public record of wrongful conduct and alerts fellow residents and their families of the nursing home’s misconduct. It also ensures compensation for victims when a home does not follow through on the promises they make to care for their residents. Additionally, jury trials send a message to wrong-doers that misconduct will not be tolerated and will not go unpunished, helping to deter others from these practices.

Follow the link to read more about how this bill would protect nursing home residents.

Lawyer Monthly - Legal Awards Winner
The National Trial Lawyers
Elder Care Matters Alliance
American Association for Justice
Fellow Litigation Counsel of America
Super Lawyers
Contact Information