Nursing homes have long required residents (or their legal representatives) to sign arbitration agreements as a condition of being admitted. These arbitration agreements prevent residents injured by abuse or neglect from going to court and exercising their constitutional right to a trial by jury.
Essentially, what this means is that the nursing homes are trying to avoid being subject to the legal system. Instead of people in your community (jury members) judging the actions of a nursing home, these agreements say an arbitrator gets to judge. Thankfully, Medicare, which spends billions of dollars on nursing home care every year, just passed a rule prohibiting nursing homes from forcing residents to sign arbitration agreements.
The fact that nursing homes want arbitration and not jury trials should tell you something. Arbitration is not cheaper than litigation, although it can limit the ability to get the information a resident needs to prove her case. Many arbitrators are fair and even more try to be fair. However, an arbitrator who gives a large award to a resident may never get hired again to hear other cases involving a company or nursing home. On the other hand, a resident will only have one arbitration in her lifetime (and many times it occurs after the resident’s death). So, arbitrators who want to get more business in the future have an inherent bias to satisfy the consumers of arbitration services: the nursing home industry.
Nursing homes also like to shield their wrongdoing from the public view. Arbitration proceedings are private matters, whereas court cases are public information. Arbitration makes it more difficult to learn about the bad behavior in nursing homes. This is clearly not in the public interest.
The Constitution listed a trial by jury as one of an American’s top fundamental rights for good reason. A court of law in which litigants stand as equals is one of the few places where truth can defeat power. Nursing homes have deep pockets with which to wage protracted litigation battles. Nursing homes have enough advantages as it is. The new Medicare rule prohibiting forced arbitration is a big victory for advocates of nursing home residents.
If you’ve been forced to sign an arbitration agreement, are being given an arbitration agreement, or have questions about going through arbitration or a trial for suspected nursing home abuse or elder neglect, contact nursing home abuse lawyer Andy Arnold first to discuss your case at 864-233-4351. Your initial consultation with the Horton Law Firm is free.
Note: The new presidential administration may call for a reversal of this rule change. We will continue to monitor this rule for updates.