Health Consumer Alert: WATCH OUT FOR MANDATORY NURSING HOME ARBITRATION
Can you believe that it is almost impossible to sue a nursing home for neglect or mistreatment? Why? Because they make you sign a contract saying you won’t sue them, and will go through private arbitration instead. Can they really do this? Read on…
A Message from New Yorkers for Patient & Family Empowerment
It’s one of the worst things you can think of – you or your loved one suffers a bad head injury. The hospital provides care, and then suddenly it’s time for discharge. But home is not an option; substantial care is still needed. The hospital recommends a nursing home. There’s no time to “shop around.”
So when they hand you a 25 page contract that includes a nursing home “mandatory arbitration clause” in which you give up your right to seek a remedy in public court for any harm from the nursing home’s actions, you hope for the best and sign to get your loved one’s pressing care needs met. But within days, the nursing home leaves your loved one unattended, and she falls and suffers a serious injury.
NURSING HOME ARBITRATION PROTECTS FACILITIES FROM LAW SUITS
That’s what happened, allegedly, in a recent civil action. But the nursing home does not want that case to reach a judge and jury. It wants to enforce a “mandatory arbitration” clause in the contract.
The matter is still in litigation and we and other groups plan to submit a “friend of the court” brief in the case. But there is a broader issue at stake: These clauses are becoming more common.
There’s something fundamentally offensive about any nursing home telling an incoming resident, “We want you to sign this agreement that says no matter how badly we harm you, you can never bring a claim against us in public court.”
Nursing home residents depend on the nursing home for their very safety. They want and need to trust the nursing home. They should never be asked to give up their right to go to court before they even know how that trust may be broken! Yet this is exactly what is happening more and more often in nursing homes.
NURSING HOME ARBITRATION PUTS RESIDENTS AT A SERIOUS DISADVANTAGE
Private arbitration is very different from a civil action in public court, and these forced arbitration clauses put nursing home residents at a serious disadvantage in many ways.
- Forced arbitration means that an arbitrator from some private arbitration firm (not appointed by a public judge) will decide whether or not you have received negligent care, rather than a jury guided by a public judge in a civil action.
- Often that private arbitration firm has already been chosen by the nursing home and is named in the contract – which means that the nursing home is likely to be a “repeat customer” of that firm. This raises a potential for institutional bias.
- There’s no public record of decisions made in private arbitrations, so you can’t tell how cases like yours have been decided in the past (although the nursing home, if a “repeat defendant,” may know). And the public has no access to information on claims being brought against nursing homes and how they are being resolved.
- It can be quite hard to find an attorney to take a private arbitration case on a “contingent fee” basis. Under a contingent fee (which is routine in personal injury actions in public court), you don’t pay up front for the attorney’s time to investigate and pursue your case. You only pay such fees if your attorney succeeds, so the funds come from the wrongdoer. Without this, the nursing home resident must fund the attorney time, which discourages the bringing of claims.
- A bad decision by an arbitrator is very hard to appeal – even if it is wrong. Justice denied may be faster but it is certainly not better.
NURSING HOME ARBITRATION ALLOWS WRONG DOINGS TO CONTINUE
The public also suffers because if fewer claims get fully investigated, “bad actors” are not brought to light and harmful wrongdoing is allowed to continue.
This unfair practice by nursing homes is so problematic that the federal Centers for Medicare and Medicaid Services (“CMS”) has proposed some restrictions. But even CMS questions whether its own proposed rules will be enough. It asked for comments on whether it should ban arbitration agreements in nursing home contracts altogether.
We said yes! These forced arbitration agreements are all wrong for nursing homes. So 13 N.Y. nonprofit groups – including Patient & Family and N.Y. Statewide Senior Action Council – signed a statement to CMS. See it at www.patientandfamily.org.
Please notify us if you encounter a mandatory arbitration clause at a nursing home or other healthcare facility, via www.patientandfamily.org/contact/, or 646-465-3635.
PASS THIS IMPORTANT MESSAGE ON!