Defending Against Nursing Home Arbitration Clauses in Neglect Cases

Arbitration clauses have long been an issue in Illinois nursing home neglect cases. As many are aware, these are clauses included in admissions documents and sometimes signed by families while admitting their senior into the home. The clause is the nursing home company’s attempt to force any future neglect case to go through an alternative arbitration process for resolution instead of using the traditional legal justice system with a judge and jury. Nursing home companies like arbitration for one reason: it offers them a better chance at avoiding accountability than the regular courtroom. For this reason families are encouraged to never signs an arbitration agreement.

Beating Back the Clause
However, even if one of these was signed, that does not mean that a future elder neglect claim can never been seen in court. That is because there are times when nursing home neglect attorneys can successfully challenge the clause and allow a traditional lawsuit to be brought.

Recently the National Association of Elder Law Attorneys (NAELA) shared a case note in its NAELA Journal that touched on ways that state law can be used to defend against nursing home arbitration clauses.

The note discusses a recent U.S. Court ruling in the case Marmet Health Care Center v. Brown. The case was seemingly a loss for residents as it allowed a nursing home company to enforce an arbitration clause. Specifically, the Court in the case held that an individual state could not limit the federal law as it relates to the enforceability of arbitration clauses in specific industries (i.e. nursing homes).

But many are reading the language of the opinion as a clear reminder that basic contract provisions can still be used to defeat these clauses.

Using Contract Law
In other words, the Marmet case referred to situations where there was obviously a proper clause in the contract. But just because a company has a piece of paper with a signature on it does not automatically mean that the clause was properly included in the agreement. In other words, parties are well advised to challenge the merit of the clause on its face.

There are many different ways that a contract (or part of contract) can be thrown out. For example, issues related to non-negotiability or unconscionability still apply. In addition, if the clause is “one-sided” it very well might be thrown out. In other words, if the family agrees to give up its right to pursue traditional litigation but the nursing home does not, then this is a strong indicator of fundamental unfairness that might result in the clause being thrown out.

Obviously contract law can get quite complex, and those interesting in delving more into the specifics of the contract arguments that may play a role in these matters should read the entire NAELA Journal case note. But it is helpful for others simply to understand that even if recent Supreme Court cases seem to support the use of arbitration, there are still various avenues that attorneys can use to challenge them and allow a family to pursue justice in nursing home neglect cases.

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