Mandatory Nursing Home Arbitration Clauses Undercut Accountability and Need to be Banned

If your loved one is injured or died through nursing home abuse or neglect, you will naturally be outraged on a number of levels.  While the damage and injury cannot be undone, thankfully, there is access to the courts where your loved one’s case can be brought in front of a jury, who can then determine fault and liability.

Unfortunately, this may not be the case.

Increasingly, nursing homes are trying to get residents to give up their right to bring a lawsuit through the traditional litigation process, and instead agree that any and all disputes must be brought through private arbitration.

What Is Private Arbitration?

A private arbitration is similar a court proceeding, with some major differences.

  • The arbitrator typically acts as judge and jury.
  • Both sides can present their evidence, including experts and witnesses, and can cross examine the experts and witnesses of the other party.
  • The arbitration is almost always “private”; meaning that it is not held in a public forum and it is not open to the public.
  • Since the arbitration is private, there is a big concern that nursing home liability and fault will be kept “private”, and that the public will not hear about the abuse and neglect suffered by residents.

The Built-In Bias Against Arbitrators Making Large Awards

There has long been a shared belief among plaintiffs’ lawyers (including me) that the monetary damages awarded in private arbitrations – particularly awards for pain and suffering – tend to be far less than the awards made by juries.  In all likelihood, a reason for lower awards from arbitrators may have to do with their concern about getting future work.  For instance, if an arbitrator issues a huge punitive damage or pain and suffering award, similarly-situated future defendants will not want to hire the arbitrator for fear that they too may receive a similar outcome.

Jurors do not have this same consideration. Instead, they are free to make any award that they believe is just and fair, as such award will not affect their future income.

Is the Arbitrator’s Ruling Final and Binding?

In almost all cases yes, unless it can be shown that the arbitrator had a hidden bias or somehow failed to act properly in accordance with the arbitration rules.

Can a Nursing Home Keep My Loved One Out if they Don’t Agree to Mandatory Arbitration?

No.  Thankfully, nursing homes receiving government payments (such as from Medicare) cannot refuse to admit new residents who do not want to agree to an arbitration clause.

Is it Better not to Agree to a Private Arbitration Clause?

While it’s impossible to know in advance of the circumstances that might give rise to a claim, a choice has to be made as to whether to agree to a private arbitration clause or not agree (and preserve the right to bring a claim through the ordinary litigation process).  Given that a choice must be made prior to nursing home admission, we believe that it is better for nursing home residents to not agree to private arbitration for the reasons noted above.

How You Can Help Your Loved One

If a loved one will be moving to a nursing home, it is important to review the contract carefully, particularly with respect to any mandatory arbitration clause.  We also highly suggest seeking the advice of experienced nursing home legal counsel, who can advise on the ramifications of the terms and conditions being presented.


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