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Nursing Homes and Forced Arbitration Clauses: What You Need to Know (Part I)

Although some may not wish to talk about nursing home abuse, the statistics don’t lie – older Americans are being abused and mistreated in nursing homes as well as in other settings at an alarming rate. According to the National Center on Elder Abuse, a 2000 study that interviewed 2,000 nursing home residents found that 44 percent of those interviewed reported being abused and an astounding 95 percent reported they had been neglected themselves or had seen another resident be neglected.

Nursing home facilities are supposed to take reasonable steps to protect their residents from abuse or neglect at the hands of other residents as well as the staff. When abuse or neglect happens because of the home’s negligence, holding the nursing home facility, its employees, and supervisors responsible is not as simple as it may sound. As Michael Corkery and Jessica Silver-Greenberg recently reported in The New York Times, nursing homes are making use of forced arbitration clauses as a means of reducing their legal exposure after an incident of abuse or neglect.

What is Arbitration? What are Arbitration Clauses?

Arbitration is one method of “alternative dispute resolution” in which the parties to a dispute present their respective “sides” of the dispute to a third person, the arbiter. An arbiter may hear evidence and testimony in a relaxed trial-like setting: oftentimes the formal rules of evidence that might otherwise cause some evidence to be excluded are suspended and the ability to make objections are limited so that the arbiter can quickly learn the material facts of the dispute and render a decision. The arbiter will resolve the dispute and enter a decision in favor of one party or the other. In some cases, the arbiter’s decision is final whereas in other situations the arbiter’s decision can be appealed to a court with jurisdiction to hear the dispute.

Arbitration clauses, then, are clauses found in many contracts that require the parties to submit their dispute to arbitration before either of them can pursue a lawsuit in court against the other. Arbitration is often speedier and less costly than a trial, which explains why many businesses prefer to resolve disputes through arbitration or some other form of alternative dispute resolution process. Arbitration clauses can be found in many commercial contracts, including credit card or loan agreements, car purchase agreements, and (yes) nursing home admissions paperwork.

Many Courts Find Arbitration Clauses to Be Binding

Historically, courts have upheld the enforceability of these mandatory arbitration clauses even though in many cases the arbitration process is rigged heavily in favor of the nursing home. That is, residents and/or their family members who have attempted to obtain justice following an act of abuse or neglect often find themselves victimized again by an arbitration process from which they cannot escape and which is designed to protect not the resident but the home.

However, as will be explored more fully in Part II of this post there are signs of hope on the horizon for nursing home residents and their families who feel trapped and victimized by these forced arbitration clauses.

Bertram & Amell is a Washington, D.C. law firm that provides experienced and compassionate legal assistance to victims of nursing home abuse. Contact our firm at (888) 991-5245 or through our firm’s online contact form for assistance.

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