Why Pre-Dispute Arbitration Agreements in Nursing Home Contracts Are a Bad Idea

It’s a common trend in almost every business: The owners of the business don’t want your claim to be heard before a jury of your peers, so they insert an arbitration clause. You sign the contract thinking you’ll be given a fair shake even if something goes wrong, but then you’re relegated to arbitration instead of trying a case before a jury.

Per the National Review, prospective residents are regularly asked to sign a form called a “Pre-Dispute Arbitration Agreement.” If the resident or person with power of attorney signs the form, that person waives the right to have the case heard before a trial judge and to be decided by a jury in the event of abuse or neglect. Instead, if the resident signs the pre-dispute arbitration agreement, the case is heard by a board of arbitrators.

It’s easy for applicants and the people who sign powers of attorney for incapacitated applicants to fail to understand this form. Most applicants focus on how much the nursing home costs, what types of services are provided, and when the senior can move in – and don’t think about the pre-dispute arbitration agreement.

Do you have to sign a contract with an arbitration clause?

You do not have to sign the pre-dispute arbitration agreement form. The nursing home can’t force you to sign the form. Generally, nursing homes want to admit as many residents as they can accommodate so the nursing home owners can earn a living – which means most nursing homes will gladly take your money even if you refuse to sign the form.

According to the National Review article, there are federal regulations that protect applicants. You have the right to refuse to sign the agreement, and to undo any arbitration form you signed – within 30 days of your signature date.

Nursing homes can’t deny your admission and can’t refuse to discharge you because you choose not to sign the pre-dispute arbitration agreement. But once those 30 days are gone, you may have a really hard time trying to get the arbitration clause struck from an agreement.

SHOULD you sign the pre-dispute arbitration agreement?

This is a very different question. The answer, however, is the same.

For a variety of reasons, applicants should refuse to sign the jury trial wavier form. The National Consumer Voice for Quality Long-Term Care states that the pre-dispute arbitration agreement form isn’t a good choice for residents because:

• Signing the form decreases your ability to hold the nursing home facility liable for the harm it causes.
• Your case is decided by a private arbitrator – not a judge.
• There’s no jury trial.
• It’s easier for the nursing home to introduce evidence that can hurt your claim, such as hearsay evidence.
• You can’t appeal the decision unless there were unusual circumstances.
• The arbitrators’ decision is confidential. This is a major reason the nursing home doesn’t want an op trial. Their wrongdoing stays private.
• Arbitrators often favor nursing homes because they reasonably expect that there will be more disputes which will be arbitrated – and that a decision in favor of the nursing home means they’ll be recommended for more arbitrations. Most arbitrators will never see you again once the arbitration case is decided.
• The cost of an arbitration can be expensive.

Are juries better than arbitration panels?

We think so. There are good reasons why juries should be entrusted to hear your case instead of so-called “experts.” Juries have the same concerns and worries that you do. For members of most juries, their jury case is one of the few times they are asked to decide the fate of another member of the community. It is the rarity of the jury experience combined with the jury discussions with fellow citizens that make the jury experience the better experience for injury victims. Jurors simply take your case more seriously because of this unique duty.

An arbiter, on the other hand, hears tens or even hundreds of cases. This means the arbitrator doesn’t feel your experience in the same way a juror does. Many arbitrators average out all the claims they’ve heard. Jurors take to heart the pain your or your loved one endures because of the negligence of others.

In jury cases, a juror can be so repulsed by the behavior of a nursing home or any defendant that they award a high verdict figure. Corporations and business defendants want you to have an arbitration hearing instead of a jury in large part to prevent the possibility of a high award.

Most residents of Vancouver and Battle Ground do not volunteer to have an arbitration hearing instead of a jury trial. The reason many business disputes are tried before an arbitrator is because the consumer or business agrees ahead of time that if there is a legal dispute, that the dispute will be decided by a panel of arbitrators. Many consumers don’t even know they waived their right to a jury trial until they file a claim and the business informs that they when they agreed to the terms and instructions of the website form or the paperwork they were initially given – that they agreed to the waiver.

At Philbrook Law, our Vancouver, WA nursing home abuse and neglect lawyers are strong advocates for seniors who suffer harm. We demand compensation for your pain and suffering and medical expenses. We pursue these cases to provide justice for our clients and to help the other residents of the nursing home. Settlements and verdicts send a message to nursing homes that they need to do much more to protect their residents. To discuss any nursing home injuries, please call our offices in Vancouver or Battle Ground, WA. You can reach us at 360-746-0351 or fill out our contact form. We represent personal injury clients on a contingency fee basis.