ARBITRATION MATTERS
Before a new resident moves in, nursing homes or long-term care facilities generally have you sign an admission agreement. Most of us know it’s best to consult a lawyer before signing any agreement that represents such a serious commitment, but for many reasons these agreements are often signed without the benefit that consult would provide. Every lawyer will tell you it’s always a good idea to have an attorney review the actual language in an agreement to help you understand exactly what you are agreeing to. Here’s one reason why that’s true.
Nursing homes and long-term care facilities know this. They also know that we will generally approach the agreement with the belief that because the whole relationship is modeled around care the agreement itself is probably “fair.” In most respects it probably is. New residents, eager to get it done, often don’t realize that from the facility’s point of view “fair” isn’t necessarily intended to work both ways. In certain respects the agreement is designed to protect the facility if something goes wrong, and in one especially important way a lawyer’s advice is critical because these agreements often include an “arbitration clause.” That clause, although it “may seem fair,” is skewed in favor of the facility.
Attorney Rebecca Benson, a well known expert in these matters, cautions that “an arbitration agreement requires a nursing home resident to waive her constitutional right to a jury trial — even for grievous injury and wrongful death — without receiving any meaningful benefit in return.” And that’s the key – you “voluntarily” give up an immensely important personal right, but you receive no meaningful benefit in return. The facility, on the other hand, may have an advantage in the event something does go seriously wrong.
In an arbitration clause, you agree to have any future claims against the facility, such as for serious injury or medical malpractice, decided by an arbitrator in an out-of-court proceeding. For you that clause has the potential to significantly limit your claim and what you might recover from such a claim. For the facility, it has the benefit of absolutely limiting your ability to file suit, and have a jury trial.
It’s true that arbitration is one way to settle a claim, and it can be preferable to going to trial. But that should be a voluntary choice, explored only when a claim arises, and not forced on a resident in advance by the admission agreement. As Attorney Benson states: “residents and health care agents should ‘just say no’ to arbitration at admission.”
If arbitration is to be chosen to settle a claim that choice can be made when the claim arises rather than foreclosing a resident’s constitutional right to a trial.
You can read more about topics like this on our Legal & Patient Rights page.