Nursing Home Neglect Cases and Mandatory Arbitration

Sep 15, 2015

Any time there is suspicion of nursing home neglect or abuse, the families involved want to act quickly to protect the safety and rights of their loved one. Nursing home neglect cases can be emotionally taxing and complicated, and always benefit from the guidance of a nursing home neglect attorney. While there are state and federal laws designed to protect nursing home residents from neglect and abuse, recognizing and proving neglect or abuse can be a challenge.

Nursing Home Neglect Cases Affected by Fine Print

After recognizing signs or symptoms of neglect or abuse, many families are limited in their ability to take legal action due to the “fine print” found in many nursing home contracts. One of the most restrictive elements to these contracts is mandatory (forced) arbitration clauses. A mandatory arbitration clause takes away the resident and his or her family’s rights to sue the nursing home. Instead, many mandatory arbitration clauses require disputes to be resolved in private by an arbitrator, which is generally chosen by the nursing home. There are several problems with mandatory arbitration, including:

  • Bias: Arbitrators should be objective, unbiased parties to dispute resolution. Many mandatory arbitration clauses include arbitrator companies chosen by the nursing home, which may not be unbiased or adequately trained to manage nursing home neglect cases objectively and properly.
  • Inadequacy: Not all arbitrators have educational or professional legal experience. Because of this, general arbitrators may not be fully prepared to adequately understand the laws and uphold the rights of the resident.
  • Discovery: During arbitration, the discovery phase is limited compared to the duration provided in trial preparation. It is a fact that proving negligence, neglect, or abuse in a nursing home can be a challenge, thus making the discovery phase of a case crucial.
  • Lack of Understanding: While not all nursing homes use mandatory arbitration clauses recklessly, it is not uncommon for the family to sign a contract without understanding what the fine print and clauses really mean. These elements of contracts are often not discussed in depth at the family works through the difficult decision to move their loved one into a nursing home.

Possible End to Mandatory Arbitration

Advocates for patients and residents of nursing homes are in full support of a proposed rule that could put an end to mandatory arbitration. While some states have specific laws banning mandatory arbitration in favor of voluntary measures, the latest proposed rule, and other federal bills, could provide more widely applicable protection for nursing home residents and their families.

Proposed rules want to end or limit mandatory arbitration clauses in favor of voluntary clauses. Additionally, the latest proposed rule seeks a requirement that nursing homes must discuss voluntary arbitration clauses and be certain that the individual understands the clause prior to signing. This discussion must include the nursing home providing the individual with clear information that is applicable to their level of understanding and language, followed by a signature of acknowledgement.

Related Resources

Florida Nursing Home Abuse Attorneys Discuss How to Report Elder Abuse

Frequently Asked Questions About Nursing Home Abuse in Miami