Nursing home arbitration agreements have become the new normal anytime a patient is admitted to a facility. These agreements are intended to limit the patient’s or family’s access to courts for resolution of disputes, such as those that arise as a result of nursing home abuse or nursing home neglect or nursing home negligence. Ultimately, the goal is to reduce or eliminate the complainant’s ability to collect damages from the nursing home. Arbitration agreements and arbitrators tend to be far more friendly to the business than the individual.
Although courts will uphold these agreements as they would any other contract, there is an emerging legal trend that involves finding these agreements either invalid or against public policy. There are a number of arguments that could be effective. One is to cite that the person who signed the document on the patient’s behalf had no legal authority to do so. Another, which emerged recently with the case of Estate of Novosett v. Arc Villages II, before Florida’s 5th District Court of Appeal in March 2016, was to argue the damage caps and elimination of punitive damages were against public policy and could not be severed from the rest of the agreement. The 5th DCA sided with the plaintiff in that case.