December 9, 2019

December 06, 2019

Subscribe to Latest Legal News and Analysis

Railroaded: Forced Arbitration Clause Should Alarm Nursing Home Residents

When a family member moves into an assisted care facility, their new home is evaluated from many angles. What is the living space like? What are the staff qualifications? Have there been concerns raised in the past? Most likely, you aren’t considering the potential need for litigation.

Yet among the many pages of admissions paperwork, nursing home residents and their families are being asked to sign a forced arbitration agreement before being admitted. This agreement bars a court hearing in the case of disputes, including those that address abuse, injury, or wrongful death while at the facility.

Instead, these clauses stipulate that any dispute must be settled in private arbitration and don’t require any public disclosure of wrongdoing. Arbitration, as a form of alternative dispute resolution, is usually entered into by business entities contracting with other business entities, as part of a business decision to reduce the costs and time of litigation. But in nursing homes and assisted living facilities, forced arbitration clauses deny their residents their civil rights.

Forced arbitration has been in the news as of late. Amtrak recently came under scrutiny for slipping a forced arbitration clause into the fine print for ticket purchases. The topic is up for discussion in the House Transportation Committee during an upcoming hearing on Amtrak, but consumer advocacy groups have objected since the clause came to light. Julia Duncan, senior director for government affairs at the American Association for Justice, said, “It is one of the most anti-consumer and passenger clauses I’ve ever seen.”

While it’s good news that Amtrak’s tactics are being addressed, it shouldn’t go unremarked that seeking care from a medical facility is a far more serious matter than buying a train ticket. Certainly, train passenger rights shouldn’t take priority over those of senior citizens!

Consider the frequent conditions under which an individual enters a nursing home. Incoming residents tend to be in poor health and under a great deal of stress. If their family are helping, they’re also likely to be in a similarly anxious state. There’s little time to consult an attorney, much less process all the details of the admissions paperwork, which is generally not written in plain language and, much like the 488-word clause buried in Amtrak’s 15,500-word Terms and Conditions statement, rarely highlights unfavorable points.

The likelihood of informed voluntary consent is small. As Duncan points out, “Most forced arbitration clauses do not go into much detail about what they cover.” Moreover, the arbitration provisions don’t typically explain the process as an alternative to a jury trial.

This may seem a small point, but its implications are significant. It’s one thing to elect to resolve a dispute through arbitration. It’s another to be told that you’re barred from seeking legal recourse by means of trial. Duncan points out that injured parties generally fare “terribly on the whole in the forced arbitration system because it doesn’t have any of the protections that having access to public accountability through a judge or jury process would.”

The legal resolution of traumatic experiences such as abuse, injury, and death wasn’t intended to be addressed by the consumer-focused corporate arbitration process. As Julia Duncan notes in her statement on Amtrak, “The question of whether or not cases of catastrophic injury or death belong in arbitration is a really important policy question.”

Forced arbitration clauses pose significant problems for dispute resolutions for nursing home residents.

COPYRIGHT © 2019, STARK & STARK

TRENDING LEGAL ANALYSIS


About this Author

 Alex Fajardo, Lawrenceville, New Jersey, litigator, personal injury claims, nursing home malpractice
Associate

Alex J. Fajardo is an Associate in Stark & Stark’s Nursing Home Litigation Group. Mr. Fajardo concentrates his practice on personal injury claims, nursing home malpractice, and litigation with emphasis on wrongful death, catastrophic injury, negligence, and abuse claims arising in nursing homes, assisted-living facilities, psychiatric facilities, hospitals, boarding, and group homes.

Prior to joining Stark & Stark, Mr. Fajardo worked for a personal injury firm in the Princeton area, where he concentrated his practice on nursing home...

609-895-7359