Arbitration is a legal process that was once mostly confined to disputes involving unions, professional guilds, and large-scale business conflicts where the players wanted to stay out of the headlines. But, more and more, large businesses are using arbitration as a way to defeat ordinary consumers from being able to pursue their rights in court. In recent years, numerous businesses have snuck arbitration clauses deep into the lengthy terms of service agreements that consumers are forced to acknowledge before using a service, such as cable or phone plans.
Nursing homes must follow strict statutory requirements when they include an arbitration clause in an admission agreement. They cannot require a resident or their family to sign the arbitration clause, the clause cannot be buried in a lengthy admission agreement and must be a separate form with a separate signature line, and cannot require a resident to waive their right to sue for Violation of Resident Rights. Here is why you should not sign such an agreement.
Nursing Home Arbitration Clauses Prevent You For Suing For Neglect and Abuse
Arbitration clauses will contain variations, but the essence of an arbitration clause is that the parties to the contract are giving up the right to sue one another in state or federal court for claims related to the services provided.
Of course, nursing homes are not particularly interested in suing their residents, and so the insertion of an arbitration clause into a nursing home agreement serves to protect the interests of the nursing home in preventing the residents from suing them.
What types of actions are nursing homes concerned that they might be sued over? Certainly, their biggest concerns include elder abuse and neglect carried out by employees against residents. Nearly 1 in 10 elderly persons experience elder abuse or neglect, and nursing homes facilitate this abuse when they attempt to increase profits by not properly screening or supervising employees and failing to provide adequate resources for residents.
What Happens When You Sign an Agreement With an Arbitration Clause
If you or a family member does sign a nursing home agreement with an arbitration clause, and elder abuse or neglect does occur, you will be forced to take any action to an arbitrator rather than go to a court where an impartial judge and jury can evaluate your claims.
You will most likely be required to pay for at least part of the arbitrator’s fees – which often are $1,000 an hour or more (judges are paid for by taxes) – and the arbitrator will resolve the dispute in private. There is rarely any ability to appeal an arbitrator’s decision, and arbitrators may be loathe to rule against the corporate interests that they depend on for repeat business.
Studies have shown that arbitrators rule in favor of corporate interests more often than do state or federal judges. Because arbitration is considered so defendant-friendly, it may even be difficult to find a plaintiff’s attorney who is willing to take a case to arbitration.
Avoiding Signing an Arbitration Clause
With that in mind, nursing home residents and their families should take great care to review any and all documents they sign to determine whether an arbitration clause exists. Most likely, the nursing home administrators will not alert you to the presence of an arbitration clause.
If there is an arbitration clause, then you should not sign the contract. Ask the nursing home to provide you with an agreement that does not include the clause. You can also seek to have yourself or a family member admitted into the nursing home without signing an agreement at all. If neither of these strategies are effective, consider speaking with a California elder abuse attorney about your options.
Contact the Elder Abuse Attorneys at Johnson Moore Today
At Johnson Moore, we know full well that elder abuse victims and their families often face stonewalling, denial, and even intimidation when they try to take action against elder abuse. We have significant experience with handling cases where a resident or their family has signed an arbitration agreement and know how to fight against enforcing an arbitration clause. Our attorneys are compassionate and determined defenders of the elderly, and we will take the time to fully understand your concerns and assess what steps we can take on your behalf. Even if you are unsure of whether you have a valid claim, we look forward to hearing from you to help you explore your options for obtaining the justice you deserve. Contact Johnson Moore today to schedule a free consultation.
