PKSD Newsletter: Forced Arbitration in Nursing Homes

Forced arbitration agreements are not new. However, many people who sign them may not realize what they have agreed to. Nursing home residents and their families often discover too late they have given up their right to seek justice.

In the June PKSD newsletter, we discuss forced arbitration agreements commonly used by employers and businesses and how they violate victims’ rights. In this article, however, the focus is on arbitration agreements used by U.S. nursing homes.

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What is Forced Arbitration?

In simple terms, forced arbitration is a legally binding method of resolving legal disputes. Wronged victims who sign these agreements give up their legal rights to take further action, including a civil lawsuit, against the company.

Although PKSD has discussed arbitration clauses in nursing homes before, these agreements are even more widely used today.

Why Would Residents and Their Families Sign Forced Arbitration Clauses?

Many nursing home chains make signing an arbitration agreement a condition of admission. However, these agreements are often hidden within the terms of an admissions contract. This makes an arbitration agreement harder to spot, especially for residents with poor eyesight.

Even if they saw the clause, residents may not know that signing this agreement meant giving up their legal rights. Family members could also easily miss this type of clause if it is hidden within the admissions contract. According to a 2015 government study, less than seven percent of those who signed the contract realized what it meant. Those who knowingly sign an arbitration clause may simply feel they have no choice if they want their admission accepted.

How Does Arbitration Work?

Arbitration is a type of alternative dispute resolution (ADR) process. When used, it bypasses the typical legal process of having to go to court. Instead, both parties agree to present their side of an argument to a neutral third party. This individual is called the arbitrator. After hearing both sides of the argument, the arbitrator makes a decision that is final and binding.

How Do Nursing Homes Benefit From Arbitration Agreements?

Arbitration agreements primarily benefit nursing homes, because:

• The arbitrator is often chosen by the facility, which may make them biased
• Hearsay, which is not permissible in a court of law, may be allowed in arbitration
• Arbitration is legally binding
• Victims cannot take any further legal action
• Arbitration is confidential, so residents and the public are unaware of a facility’s violations

What Arbitration Rules Have Changed in the Last Few Years?

While President Obama was in office, his administration sought to implement a ban on mandatory arbitration. Unfortunately, Obama’s ban barring nursing homes from requiring residents to give up their legal rights was reversed in 2020. The Trump administration issued a new regulation, effective from July 2020, that again permitted the use of arbitration clauses in contracts.

How Does Forced Arbitration Violate the Rights of Nursing Home Victims?

If a nursing home resident suffers abuse or neglect from a caregiver at the facility, you would think he or she could sue the facility for damages. However, if you signed an arbitration clause for a family member and he or she suffered harm due to abuse or neglect, you would have no legal case. Your only option would be to resolve the situation through arbitration.

Time wrote about a resident in an assisted living facility near Birmingham, Alabama who experienced “justice” through arbitration. The 87-year-old Catholic nun said she was raped. Afraid that her perpetrator would return if she called for help, she waited until the next morning to tell a staffer it happened.

Police investigated and found evidence at the scene that supported the victim’s statement. The results of an examination, documented in her medical records, also showed evidence of a sexual assault. However, what they found was reportedly not enough to bring criminal charges.

By signing Trinity Lifestyles Management’s required pre-dispute binding arbitration agreement, the victim, Sister Irene Morissette, gave up her rights. In the end, her only available course of action was mediation. The forced arbitration agreement she signed meant she could not pursue a trial by jury or bring a civil lawsuit against the facility or its parent company.

Contact PKSD for Legal Help

PKSD is ready to help protect the elderly. If your loved one suffered abuse or neglect at his or her facility, contact our firm to learn if you have legal options. We are here to help.

Your initial consultation is completely free, and there are no upfront costs if you choose to hire our services. We do not charge our fees unless we win your case.

Experienced lawyers on your side. 414-333-3333