Many new admissions or their family members are being “asked” to sign mandatory arbitration agreements, typically included in the mounds of other necessary paperwork completed before a care agreement is reached.
Mandatory arbitration agreements are legal contracts in which patients and/or their loved ones agree any dispute or disagreement related to care will be raised before an arbitrator, rather than in civil court before a judge. The process is typically advantageous for nursing homes because rulings are mostly in their favor and even when damages are awarded, the amount is typically far less.
That means if your loved one suffers as a result of nursing home abuse, neglect or negligence, it’s the nursing home that will have the upper hand if the resident or family raises an issue and seeks accountability and damages.
A number of states, including Oklahoma, New Jersey and California, have outlawed mandatory arbitration agreements as a prerequisite to nursing home admission. That hasn’t stopped companies in those locations from forcing the paperwork in front of new patients, arguing the contracts are still valid under federal arbitration and contract law.
The primary problem with these contracts is they are typically drafted by nursing home attorneys. That means the nursing home has the opportunity to control the terms of the arbitration, which means those terms favor the facilities and put the residents at a disadvantage. These “favorable terms” can range from naming an industry-friendly arbitration service to limiting the amount of damages that can be collected.
There has been federal legislation proposed that would address this problem. The Arbitration Fairness Act of 2009 specifically would have banned nursing homes from forcing desperate families in need of care to sign these unfair contracts. However, the measure sputtered out with the legislature before it gained any real traction.
In Florida, such contracts have been upheld as valid by the Florida Supreme Court. Specifically in the 2013 case of Laizure v. Avante at Leesburg, Inc., the court sided with a nursing home in one such dispute. That case involved a woman whose father had died as a result of alleged nursing home negligence and/or malpractice by his caregivers. She filed a wrongful death action. Although she had never personally signed an arbitration agreement, her father had. The court ruled the ability to cover damages is predicated on decedent’s entitlement to maintain an action, had the death not ensued. That means even relatives, agents and heirs who signed nothing can be bound by these contracts.
That does not mean patients or families are without options. There may be a number of ways to challenge the validity of these arbitration agreements.
We may first examine the mental competency of the person signing the contract. If an elderly or disabled resident would not have been mentally fit to enter into such a contract at the time it was signed, the contract may not be enforced.
Similarly, a contract that is unconscionable or defies state law would be struck as well.
Speaking with an attorney before signing such a contract would be ideal. If one is already signed and nursing home negligence is suspected, it is imperative to contact an experienced legal team to determine the best strategy moving forward.
Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.
Price of Admission to Nursing Homes: No Lawsuits, April 26, 2015, By Oklahoma Watch and M. Scott Carter, KGOU.org
More Blog Entries:
Report: Nursing Home Falls Precipitated Patient’s Death, June 2, 2015, Boca Raton Nursing Home Abuse Lawyer Blog