This week John Perconti, one of our Chicago nursing home abuse lawyers, was asked to provide some perspective on recent nursing home related legal decisions for the popular database Lawyers.com. The two state Supreme Court cases (Shotts v. OP Winter Haven and Gessa v. Manor Care of Florida) have both been heralded as important wins for nursing home residents and their advocates. The cases struck down certain aspects of nursing home arbitration clauses which put damage caps in place which were lower than those allowable in state courts.
Our Illinois nursing home neglect lawyers have repeatedly warned local consumers about the dangers of these arbitration clauses. They represent a backhanded way that these facilities seek to avoid being held accountable for their conduct which harms residents. The clauses are parts of the admissions contracts that residents and their families sign when they begin living in a home. When signing the complex, confusing, and overwhelming documents consumers often unknowingly sign away a bevy of rights. The agreements often include clauses which force disagreements to be litigated via arbitration (not the regular court system). In addition, the clauses also attempt to limit the award that can be recovered. That was the issue in each of these major cases.
Fortunately, the courts here issued important rulings respecting the rights of community members not to have their substantive rights infringed when they use these agreements. In Schotts, the issue was whether a forced arbitration clause was valid which held that the arbiter was not allowed to award punitive damages. In Gessa, a provision in the arbitration agreement capped non-economic damages at $250,000 in addition to banning all punitive damage. The courts found both clauses invalid.
Our Chicago nursing home abuse attorney John Perconti explained how these decisions (which were out of Florida) may impact similar agreements in states across the country. Nursing homes in other states may now think twice before imposing these damage caps in their agreements. He went on to note that fortunately these clauses are not often used in Illinois. He said, “We have not seen any clauses imposing damage caps in any of the nursing home contracts as they would violate Illinois public policy and undermine the remedies set forth in the Illinois Nursing Home Care Act.”
Courts are prone to strike down these agreements if they go against the spirit of legislation meant to deter nursing home neglect or abuse. Similarly, many of these agreements are signed by families in situations akin to duress-often after a loved one was hospitalized. Attorney Perconti noted that “It is analogous to patients admitted to the emergency room or hospital who sign without fully understanding the legalities involved.”
While these court ruling are positive protections for nursing home consumers. It remains important for all those signing nursing home admission documents to pay particular attention to the materials. We recommend that arbitration clauses not be signed. The consumer can ask that the clause be stricken from the contract. Many of these facilities are hoping to fill their beds, and they may be open to eliminate the clause if it means that they will get another resident. Failure to make the demand means that families are signing away vital rights to a jury trial, the ability to collect evidence, or appeal rulings.
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