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Nursing Homes Commonly Use Arbitration Agreements to Avoid Trial

When you take a loved one to a nursing home, there are plenty of forms and paperwork to complete. There will be admissions papers, disclosures, release forms, and likely plenty of legal disclaimers and waivers, all with significant fine print. Most people are shocked to learn that often buried in the fine print is something attorneys call an “arbitration agreement.” And unfortunately, personal injury attorneys often face motions to dismiss cases, filed by defendants who claim the plaintiff waived the right to a jury through such a contract provision.

What is arbitration?

Arbitration is a form of alternative dispute resolution, through which an independent and neutral arbitrator – often a retired judge or attorney – attempts to resolve the dispute and renders a decision. It is established by federal law and is given strong preference by the courts. This arbitrator is not bound by statutes, regulations, or other laws. Further, the arbitration companies are private, for-profit organizations that often have direct financial ties to the very corporations who use their services. This would almost always create an undeniable conflict of interests for a judge, but arbitration companies go one step further. The research shows some shocking reasons to avoid arbitration. Here are just a few reasons arbitration is patently unfair to the consumer.

  1. Research has repeatedly shown that companies who use the same arbitrator more frequently receive more favorable results.

It should come as no surprise that the companies who put a specific arbitrator in all their contracts and drive business to that arbitrator would be given some favorable treatment. After all, they want to keep them coming back; it’s how they get paid.

  1. Arbitration clauses are “take it or leave it.” Consumers have no choice.

Industry leaders will always argue that a consumer can refuse to sign a contract. However, when every single company offering a service requires the same contract provision, a consumer cannot exactly refuse to be bound by it. Perhaps this may apply to credit cards, new car purchases, or other such luxury or non-essential items, but what about nursing homes? Sadly, nursing homes use these clauses all the time. In many cases, courts will uphold these provisions and not permit families to bring cases against the facilities, instead forcing them to take their cases to the arbitrator chosen by the nursing home in the contract.

How to avoid arbitration of a nursing home negligence case

If you want to protect your Constitutional right to sue in open court and receive a jury trial, you should begin with a few advanced planning techniques. First, if you are the responsible party taking care of an elderly loved one who may soon need nursing home care, be sure you have properly drafted powers of attorney, prepared by an experienced attorney. Second, make sure that your power of attorney has a very brief but clear statement that limits your powers by saying something to the effect of “my agent shall have no power or authority to waive the principal’s rights to a jury trial and may not bind the principal or his representatives to any arbitration agreement.”

Your attorney can offer more specific advice on the language to use, but by doing this, should you ever need to admit your loved one to a hospital or nursing home using your power of attorney, this may reduce the chances of a court forcing you to go through arbitration. After all, if you had no authority to sign such a contractual agreement on behalf of the injured person, then the injured person retains the right to sue, as does his or her representatives.

Likewise, even if you have signed such an agreement, it is best to immediately request a copy of the admission paperwork and share it with an experienced Florida personal injury attorney at the Romero Law Firm. There are often other ways to still pursue your case in court.

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