Arbitration Agreements in Nursing Home Contracts: How Do They Affect the Right to Recover for Abuse
Nursing home abuse is a topic that many shy away from pondering, because it is unsettling to think about harm coming to such vulnerable people. Consequently, when people enter a nursing home, they usually do so under the expectation and premise that they will receive adequate care and be free from physical harm. These expectations comprise the basic standards that anyone receiving medical care would demand from a doctor and/or medical staff, but in the world of nursing homes, it is often difficult to find a find an affordable and safe facility that has open beds. As a result, once a seemingly acceptable home is able to take a new patient, families jump, and fail to read and consider the mountain of forms they are asked to sign. Choosing not to read and understand the documents provided at admission can greatly affect a family’s ability to sue a facility if a loved one is injured or dies due to negligence. This is due to the fact that many nursing home agreements include clauses for mandatory arbitration. These clauses restrict a person’s ability to settle a dispute and require all claims to be decided by arbitrator, and not a judge or jury.
Mediation is an alternative to court when parties need to resolve a dispute. The process is led by a neutral third party, a mediator, who facilitates negotiations between the parties in hopes of coming to a mutually agreed-upon settlement. The benefits to mediation over a traditional trial include lower costs and less time, and any agreement reached is confidential. In the context of nursing home abuse claims, Florida law requires all parties in disputes alleging violations of a resident’s rights to attend mediation during the preliminary stage of investigation before a formal lawsuit is filed. During this stage, the nursing home has the right to investigate the claims alleged by the plaintiff, so it can decide if it is prudent to offer settlement in lieu of a trial. Once this investigatory period is over and the nursing home responds to the plaintiff’s claims, the parties must enter mediation within 30 days to discuss liability and damages. This process is not binding, and the plaintiff has the option of filing a lawsuit if the result is not satisfactory.
Arbitration, like mediation, is an alternative forum to resolve disputes. However, unlike mediation, an arbitrator, also a neutral third party, looks at the evidence presented by both parties and renders a decision that is enforceable in court. While arbitration does not have to be binding, the agreements used by many nursing homes direct all disputes to arbitration for resolution, and make any decision rendered binding on the claimants. In addition, the nursing home usually has an arbitration organization they use to decide all disputes, which could show bias in the nursing home’s favor because it brings repeat business. Further, the ability to get information and documents from the opposing party may be limited, which makes it harder for injured parties to prove their case. Finally, and importantly, the ability to appeal an arbitration decision is limited, so parties are often stuck with the outcome regardless of how fair or correct it is. Unfortunately, courts have upheld the use of arbitration agreements by nursing homes, specifically in wrongful death cases, so the best thing to do is refuse to sign it. Federal law prohibits retaliation, transfer or discharge for refusing to sign an arbitration agreement.
If you or a loved one suffered harmful and/or negligent treatment at a nursing home, talking to a lawyer experienced with suing nursing homes is important to recovering for your injuries. There is a specific process that must be followed to bring a lawsuit against nursing homes, which makes the selection of the right lawyer crucial to a successful outcome to your case. The Miami law firm of Pita Weber & Del Prado has the necessary experience and can assist you with holding right parties accountable. Contact us to schedule a free consultation.