Whether you are touring nursing homes to plan for your retirement or are seeking to find a place for your elderly relative to have proper care, you may find that many places try to have you sign an arbitration agreement. Often, prospective residents of nursing homes view the arbitration agreement as just another document in the admissions packet, but it’s much more serious. Signing it can give away your Constitutional right to a trial by jury.
Arbitration is supposed to be a lower cost means to resolve a dispute between parties outside of the judicial process. In arbitration, the parties bring a case before an arbitrator (or a panel) who then issues a ruling. The arbitrator or panel are disinterested 3rd parties who are appointed or agreed upon by the parties undergoing arbitration. Generally, courts have no further involvement once a case is sent to arbitration. With no court oversight or opportunity to appeal an adverse decision, the arbitrator wields enormous power.
Arbitration offers some advantages in the right situation because it produces a decision faster than litigation. This may seem like a good thing – but remember, the arbitrator has almost unlimited authority over your case, and you cannot appeal and take your dispute to the courts if the decision is not in your favor. So, you should only consider signing an arbitration agreement if you have truly equal bargaining power and your lawyers help choose the arbitrator. Neither is the case when you sign an arbitration agreement when entering a nursing home.
Here’s the catch. No one entering a nursing home thinks they’ll need to file a lawsuit, and very few people think to analyze carefully the proposed arbitration agreement. Often it is stacked against the patient and requires the patient to consent to an arbitrator from a panel chosen by the nursing home. Those arbitrators make a living arbitrating cases, and the nursing home or the insurer provides repeat business for their hand-selected arbitrators. It’s hard to expect a fair shake in those circumstances. It’s not worth giving up your Constitutional right to a trial by jury just because a nursing home includes an arbitration agreement in its admission documents.
If for some reason, you think you need to sign an arbitration agreement, ask yourself why. If the reason is because the nursing home is pressuring you, then think twice about that nursing home. If you have other reasons unique to your situation, consider talking to a lawyer about the arbitration agreement. Pope & Howard, P.C. has had a lot of success having courts declare arbitration agreements invalid, but nursing homes are getting smarter. Before you sign away your constitutional right to trial by jury, make sure it is in your best interest. It rarely is.
The first reason to review any agreement with an attorney is so that you have an understanding of what you are signing. Your attorney will review the agreement and go over it in detail with you to make sure you don’t have any questions or that any questions are answered to your satisfaction.
Another reason to have your attorney review the agreement is so they will be familiar with it should you need to go to arbitration at a future time.
While arbitration is a private dispute resolution process, you can still have representation or an attorney there to guide you through the arbitration process. Making sure your attorney is familiar with the agreement means he or she can best assist you through the arbitration process.
The attorneys at Pope & Howard are available to represent you should your loved one have a case against a nursing home. Please contact us today about arbitration agreements or other matters regarding physical, mental or financial abuse in nursing homes.