California Nursing Home Abuse Lawyer Blog

There is a growing movement to ban the common practice of requiring nursing home residents to waive their right to file a lawsuit in claims of negligence, abuse, or neglect in favor of arbitration. Last week, several consumer advocates testified before congress and criticized the practice of "forced arbitration."

Public Citizen released a report alleging that the practice of forced arbitration, essentially requiring a consumer to sign an arbitration agreement as a condition of being provided the service, has become pervasive. The report, "Forced Arbitration: Unfair and Everywhere" found that many industries, including nursing homes, banks, contractors, cable companies and auto sales, will require consumes to waive their right to file a lawsuit before the services will be provided.

For years, attorneys and consumer advocates have questioned the impartiality of arbitration, which usually has a lawyer or retired judge, or a panel of them, sitting as the trier of fact. The Public Citizen report reveals that arbitrators for the National Arbitration Forum (NAF), the largest arbitration firm in the country (but one of many), ruled against consumers 94 percent of the time.

With regard to nursing homes, the Fairness in Nursing Home Arbitration Act of 2009 is currently being considered by the U.S. House of Representatives. In current form, the Act would ban the practice of arbitration clauses in admission agreements.

Source: About Lawsuits

The nursing home abuse and neglect lawyers at the Walton Law Firm provide free consultations to individuals and families who believe a loved one has been abuse or neglected in a Southern California nursing home or assisted living facility.

When entering a nursing home, residents or their family are usually presented with a stack of documents that address everything from the fees to be paid to the type of pillow the resident prefers. More than a dozen signatures can be required to complete the admissions process. Often buried within that stack is an arbitration provision, a binding contract wherein the resident agrees that any disputes over nursing home malpractice, negligence, neglect, or abuse will not be resolved in the courts, but via private arbitration. Private arbitration is simply a process where allegations of neglect or abuse are resolved by a private judge (frequently a lawyer) and not a jury.

Last week, the American Association of Justice, the United State's largest trial bar, announced its support for legislation titled The Fairness in Nursing Home Arbitration Act, which allows the decision to arbitrate to be made after a dispute has arisen, not before in the admissions process.

According to the AAJ, the passage of this act will prevent corporate nursing home owners from manipulating the arbitration system in their favor and at the expense of nursing home residents.

Nursing home residents should not be forced to check their legal rights at the door in deference to large corporate interests", said American Association for Justice President Kathleen Flynn Peterson. "Mandatory arbitration denies nursing home residents access to the civil justice system and stands in the way of the quality long term care they deserve. By forcing people into a costly private system, the corporation sets the rules and hand-picks the players.

I can say with experience that most people learn for the first time that they have waived their rights to a court action in favor of arbitration when they contact our office with claims of nursing home negligence. They are usually not happy about it. And clients get more upset when they learn that they have to pay for a portion of the arbitrator's fee, which usually exceeds $250 per hour. Imagine an elderly victim of neglect or abuse being told that he or she has to pay thousands of dollars simply to seek access to justice. Now you're getting the picture of what arbitration is all about.

Nursing homes around the country are now requiring prospective residents to agree to binding arbitration before admittance into a home. By signing an agreement to arbitrate, nursing home residents are forever giving up any rights to seek compensation in a court of law for harm caused by caregivers who abuse or neglect a resident, or for any other nursing home malpractice. Those claims would be handled by an arbitrator, usually a retired judge or an experienced (but often jaded) lawyer.

These arbitration clauses have profound implications, and should be avoided when possible. As this Wall Street Journal article points out, they are a part of a nursing-home-industry strategy to use arbitration agreements to reduce litigation costs, take cases away from juries, and lower compensation awards.

Apparently it has worked. According to a nursing home industry study, average costs to settle cases have begun decreasing as claims of poor treatment are increasing. Nursing homes have learned over the years that neglect or abuse of a vulnerable senior citizen is an emotionally charged thing. And when juries get emotionally charged, they tend to take action to right the wrong that has been committed - usually in the form of verdict commensurate with the wrongdoing - exactly as the U.S. Constitution intended.

Sadly, this is becoming standard practice. In our law practice we frequently get cases of profound injury or death, and discover shortly after taking the case that a jury will never get to hear the terrible story because the victim agreed to arbitrate upon admission; an agreement often entered into months or years before the neglect.

The answer to this problem? Don't sign the arbitration agreement. In California, an agreement to arbitrate must be a separate document from the admission contract itself, and a refusal to sign cannot be the basis for a refusal to admit a resident. The best way to avoid the harsh restrictions of arbitration is to avoid it at the beginning. Another way is to support a nursing home bill introduced last week by two U.S. Senators that would ban the use of arbitration agreements in nursing home contracts. Contact the offices of Senators Boxer and Feinstein and urge them to support this bill.