Articles Posted in Binding Arbitration

ufomxgheugk-todd-diemer-300x178Advocates for seniors in San Diego County and throughout California have concerns about elder abuse and neglect in nursing homes and assisted-living facilities. Last year, lawmakers took steps to speed up the rate at which elder abuse cases will be heard in California courts. Specifically, a recent article in the Monterey County Weekly reported on changes to the law in 2016 that will take effect this year, including SB 1065. This bill, proposed by State Senator Bill Monning, was signed into law in 2016 and is schedule to take effect on July 1, 2017. This is not a new law altogether, but rather, as the article clarifies, “builds on the existing Elder and Dependent Adult Civil protection Act to move elder abuse cases through the courts faster.”

Currently, without the law in effect, the article emphasizes that the “appellate process can take more than three years.” Once SB 1065 takes effect, however, all appeals must be decided by the court within 100 days. What else should you know about SB 1065 and its impact on San Diego County seniors?

Details of SB 1065 and its Elder Abuse Protections

Deciding how to care for an aging loved one likely will be one of the most difficult and emotional decisions you will ever have to make. Our North County nursing home lawyers know that caring for aging family members can cause an enormous amount of stress and emotional turmoil. For example, there often are many daunting tasks involved in caring for an parent, including: taking over a parent’s finances, making medical appointments, navigating through a maze of insurance coverage and claims, and even finding space in your home or locating an appropriate long-term care facility. Unfortunately, a recent Supreme Court opinion may make selecting a nursing home for your loved one even harder.

According to a new high scout decision, nursing homes may freely use binding arbitration clauses in their contracts with residents. Such agreements bar elder abuse victims and their families from suing in court, even in cases involving the most egregious and extreme instances of abuse or neglect. The decision, Marmet Health Care Center, Inc. v. Brown (2012), overturned a ruling by the West Virginia Supreme Court, which allowed families to bring lawsuits against nursing homes despite the existence of binding arbitration agreements. Plaintiffs in three wrongful death suits against West Virginia nursing homes sought compensation despite the fact that they or their loved ones had signed an agreement to settle disputes in arbitration, instead of courts, when seeking to admit their loved ones to a nursing home. As is often the case, such binding arbitration clauses typically are buried in contracts and most people do not understand the implications of agreeing to them. Agreements containing binding arbitration clauses could even be one of many pages included in a pile of paperwork required by a nursing home prior to the admission of a new resident. contract.jpg

The Court’s decision was based on the 1925 Federal Arbitration Act, a law providing businesses with almost unlimited power to include arbitration clauses in contracts. The problem with arbitration is that it puts too much power in the hands of businesses, which typically do not have the interests of consumers at heart, even vulnerable consumers such as soon-to-be nursing home residents. Arbitration proceedings often are secretive and expensive for consumers to pursue. Monetary damages awarded in favor of a plaintiff are generally lower in arbitration than those in court.