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The Unfairness Of Nursing Home Arbitration Agreements

August 19, 2009

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Imagine this.  Your elderly mother has a stroke that leaves her partially paralyzed.  The hospital is about to release her and a decision needs to be made about her ongoing care.  After weighing the options, your family decides to place her in a nursing home.  You accompany her there and review the admission papers on her behalf.  Included among them is a document entitled “Resident and Facility Arbitration Agreement.”  Distraught over your mother’s condition, you read through the papers quickly and sign.

Then the unthinkable happens. Due to the nursing home’s neglect, your mother suffers a bedsore that leads to amputation of a limb.  When you file a lawsuit, the nursing home moves to enforce the arbitration agreement.  Your attorney, knowing that lawsuits are superior to arbitration for claims of this nature, opposes the motion.  The court, however, grants the motion, and you are forced to arbitrate the claim.

This scenario and others like it happen with increasing frequency as “pre-dispute” nursing home arbitration agreements have become the industry norm.  Many states, like Ohio, have legislation designed to mitigate the unfairness of these agreements, but they do so by half-measures, such as requiring the agreement to specify that signing it is not a condition of admission or that, by signing the agreement, the patient is giving up her right to a jury trial.

But these statutes do not address the fundamental problem.  Why should the patient or her family be pressured to sign an arbitration agreement before a dispute has arisen -- particularly when the agreement is presented at such an emotionally charged time as upon admission to a nursing home?

The United States Congress is currently considering legislation that would make pre-dispute nursing home arbitration agreements illegal.  This legislation, called the “Fairness in Nursing Home Arbitration Act,” would prohibit nursing homes from enforcing pre-dispute arbitration agreements.  The bill would not ban post-dispute arbitration agreements, but would permit the parties to choose arbitration if the choice is made after a controversy exists.

Unless this legislation is passed, nursing homes will continue to include pre-dispute arbitration agreements in their admission packets, and unwary patients and their families will continue to sign away their rights.

Although arguments can be made to avoid enforcing these agreements, they are often met with resistance in the Ohio courts.  Frequently patients’ lawyers argue that the arbitration agreement is “unconscionable” based on the circumstances at the time of the patient’s admission, and the fact that the agreement forces the patient to give up certain rights he or she would have if the claim were litigated in the judicial system.

If you have questions regarding Nursing Home Arbitration Agreements contact an experienced nursing home attorney at Nurenberg Paris.

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