Nursing home arbitration agreements – which have become mandatory for admission for many facilities across the nation – restrict patients’ access to the court system in the event of disputes arising as a result of poor care or criminal acts. They are a serious problem, as they serve to curtail the damage awards patients and their loved ones might otherwise receive.
Now, they are a topic of discussion among Congressional leaders in the House of Representatives. In a recent session, a number of Democratic leaders implored their colleagues for a solution that would overhaul this private system of justice that often favors the nursing home. The problem is arbitrators generally consider the nursing home their clients.
Rep. Hank Johnson (D-GA), asked his colleagues to pass a bill he had recently introduced that would prohibit firms from pushing civil rights lawsuits (including nursing home abuse lawsuits, employment discrimination lawsuits and others) into an arbitration forum. Johnson said arbitration clauses are especially damaging for women, minorities and vulnerable populations, such as those in nursing homes.
Mandatory, forced arbitration clauses – which are not just in nursing home agreements but also in employee handbooks and even implied with the purchase of consumer goods – block consumer and worker access to the courts. They replace it with this system that is inherently skewed and generally more expensive for the party who is seeking redress.
Johnson, a member of the House Judiciary Committee, argued that these contracts are inherently unfair.
Our West Palm Beach nursing home abuse lawyers know the other major problem with these agreements – aside from their limits on justice for those who suffer abuse or neglect, is that the proceedings are often confidential. That’s big because if a facility knows that no matter what evidence is revealed or what the outcome is, the public will never found out, then there is little incentive to change dangerous practices. In other words, arbitration agreements keep existing and new patients in the dark about possible dangers, and they also allow bad facilities to continue business as usual.
Most arbitration clauses also block consumers from filing class action lawsuits. This generally isn’t an issue for nursing home residents, but it’s illustrative of the underlying intent because class action lawsuits are usually the only way for persons with finite resources to battle a wealthy business.
Johnson credited a recent New York Times investigation with “pulling back the curtain” to show the true extent of forced arbitration in many different arenas. The in-depth investigation revealed that arbitration clauses allow companies to sidestep the courts and crush challenges to elder abuse claims, discrimination, sexual abuse, predatory lending and wrongful death. Companies are able to throw out terms like, “frivolous litigation,” but the reality is, these are legitimate claims and arbitration allows firms to evade accountability. Many times, when an arbitration agreement is upheld, people will just drop their claims.
It often isn’t worth it because the arbitrators aren’t even bound by law. For example, some companies compel consumers to attend Christian arbitration for redress, with arbitrators held by Biblical laws rather than state or federal law.
Attorneys general from 16 states plus D.C. asked the U.S. government to block Medicare and Medicaid funds to nursing homes that enforce arbitration clauses. That action is still pending.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
House Democrats Call for Curbs on Required Arbitration, April 14, 2016, By Jessica Silver-Greenberg and Michael Corkery, The New York Times
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