One of the most dangerous aspects of having a loved one living in a nursing home isn’t just the negligent quality of care we sometimes hear about on the news, but the contracts that residents and their families are forced into signing before they can live there. Specifically, as part of its series on arbitration clauses robbing individuals of an unbiased right to trial before a jury or judge, the New York Times recently described one family’s experience fighting this clause after their mother was killed due to a nursing home’s negligence, yet being barred from obtaining justice.
Arbitration Clauses
An arbitration clause is a clause or wording in a contract that requires any disputes between the parties signing to resolve these disputes through the arbitration process rather than taking them to court. While at first that may sound reasonable, in fact, in many instances, the arbitration process can be heavily biased and favor the private entity who drafted the contract and forced the process into arbitration in the first place. Many have felt that the arbitration process guarantees the exact opposite of justice and question how the process could possibly be objective when there is a strong connection between the arbitration firm running the hearing and the law firm representing the nursing home.
Stifling Justice against Nursing Homes
While they were originally found mostly in business contracts, arbitration clauses are arguably being used more and more by parties who simply want to safeguard themselves from being sued and prevent the public from finding out the details of embarrassing incidents, and that includes nursing homes. It has become such an issue, in fact, that officials in 16 states recently had to urge the federal government to deny Medicaid and Medicare money to nursing homes that used these clauses in order to try and overcome the lack of justice that was happening in association with hundreds of wrongful death, elder abuse, and neglect cases that were ending up in arbitration. Regardless of how unfair these clauses are, judges have routinely found themselves stuck upholding them anytime they are challenged, as the right to contract is a strong one.
Progress?
However, this particular case highlighted by the New York Times could signal change coming: this nursing home victim’s son was able to overcome the arbitration clause in this instance because, although he was serving as his mother’s health care proxy at the time he signed the contract on her behalf, the judge found that he did not have the authority to bind his mother to arbitration simply by being her health care proxy (i.e. this requires power of attorney). This could be the precedent that allows many more to break free from the requirement that any nursing home residents and their families go through arbitration if something bad happens—no matter what happens, and whose fault it is.
Let Our Personal Injury Lawyers Assist You Today
If you or a loved one has experienced neglect or abuse in a nursing home, it makes sense to discuss your concerns with an experienced attorney to ensure that you and your loved one are protected, and that justice is served for wrongdoing. Contact the attorneys at Harrell & Nowak today for a free consultation on this issue and let us help you.