The Right to Sue Nursing Homes for Physical Abuse and Neglect Should Not be subject to Pre-Dispute Arbitration Agreements

“Forced arbitration clauses in nursing home agreements stack the deck against residents and their families who face a wide range of potential harms, including physical abuse and neglect, sexual assault and even wrongful death at the hands of those working in and managing long-term care facilities,”.  Steven Peck of the Peck Law Group, APC, of Los Angeles, California, who handles Nursing Home litigation, has successfully opposed many petitions to compel binding arbitration against skilled nursing facilities, assisted living facilities,  acute care hospitals, and Kaiser Permanente.

“They through in these pre-dispute arbitration agreements, along with the admission paper work, and most times, fail to explain the legal consequences of what the long term care patient is actually signing” says Mr. Peck.  These pre-dispute arbitration agreements are also written with so much legalese that the average consumer would never understand. what they actually mean and what rights the resident / patient is actually releasing.

“These clauses prevent many of our country’s most vulnerable individuals from seeking justice in a court of law, and instead funnel all types of legal claims, no matter how egregious, into a privatized dispute resolution system that is often biased toward the nursing home.”

“Placing a parent or loved one in a nursing home is already one of the most difficult things anyone will ever have to do in life,” they said. “But forcing the patient or family member to then sign something that violates the resident’s legal rights should they suffer future abuse or serious neglect is a horrific thing to do to families.”

The attorneys general of California and 15 other states, along with the District of Columbia, also submitted opinions this month calling on CMS to maintain the right to sue as a crucial means of holding nursing homes accountable for the welfare of residents.

The nursing-home industry is by no means alone in preferring arbitration for dispute resolution and denying people their day in court. Mandatory arbitration is a routine feature of contracts for telecom companies, credit card issuers and numerous other businesses.

Companies argue that consumers benefit from faster, cheaper arbitration proceedings, rather than having cases tied up in courts for possibly years and sharing any monetary awards with lawyers.

Yet with exquisite irony, the American Health Care Assn., a nursing-home industry group, took its case to court before the Obama administration’s rule could take effect in November. A federal court granted the association’s request for an injunction so the industry’s lawyers could litigate the matter.

In fact, study after study shows that consumers typically get the short end of the stick in arbitration. The advocacy group Public Citizen found that over a four-year period, arbitrators ruled in favor of banks and credit card companies 94% of the time in disputes with California consumers.

One key reason: Arbitrators’ fees usually are paid by the business, not the consumer. If an arbitrator wants more cases, he or she has a strong incentive to make the company happy.

DO NOT SIGN PRE-DISPUTE ARBITRATION AGREMENTS. THEY ARE NOT A CONDITION FOR A PATIENT TO BE ADMIITED TO A MEDICAL FACILITY!!!

Just as important, litigation provides a public record that other families can use in making their own decisions. Ask yourself: Would you be comfortable placing your parent in a facility that settled a lawsuit over patient abuse?

Such shameful stats are why the nursing-home industry is fighting so aggressively to block residents and their families from being able to sue. It has spent about $8 million on lobbying activities over the last two years, according to the Center for Responsive Politics.