Nursing Home Arbitration Agreements Deprive Justice

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.