Why does the nursing home want you to agree to give up your right to a jury trial and sign an arbitration agreement?
Whether you realized or not, when you signed the contract for your cell phone, you likely signed what is called an Arbitration Agreement. It likely said something like:
The Purchaser agrees to waive her or her right to bring any action against the Cell Phone company in state or federal courts, but instead agrees to bring any and all disputes in Arbitration and agrees to the rules set forth by the American Arbitration Association, etc..
Why would a company make this kind of waiver part of their standard contract? Is it because it benefits the consumer? Nope. Reduces the chances you will file a claim? Yes. Is more expensive for the consumer to bring a claim? Probably. If Arbitration provisions didn’t benefit the companies, they wouldn’t be in your contract. Do they keep their allegations of wrongdoing quiet and confidential? Yup.
But we also see them in health care contracts as well. They are standard in nursing home, assisted living and home health care contracts. And for years as my office has fought these provisions, we have heard a variety of reasons given by long term care industry folks as to why these provisions are included.
For years I heard the following justifications:
- Saves Time (This is possibly true, maybe in 10 out of 100 cases, but not a statement of fact that applies to every case).
- Saves Money (This is entirely true for the nursing home or long term care facility. It does save them money to keep you and your family out of court. It does not however financially benefit the consumer, or patient, or family or save them money.
- Parties have more control (This too is not true. The Rules of Court exist to keep parties in line. You don’t follow the rules, there are consequences. Arbitration is not public record, there is little accountability when rules are not followed, etc.)
Recently however, a lawyer who defends nursing homes wrote an article for Long Term Care Magazine where she very directly espouses the benefit of these contractual provisions to the facilities and companies that own them. Why should the facility include them in their admissions paperwork according to an industry lawyer?
- A lawsuit may be avoided
- The facts and case resolution may be kept out of the public eye
Did you catch that? The facts (meaning, the crappy care your love one got or the fact they didn’t hire enough nurses, or didn’t train them well, or let their patients beg for help without assistance) WILL BE KEPT OUT OF THE PUBLIC EYE.
That ladies and gentlemen is why these large companies want you to give your right to a jury trial away. Because a local state or federal courtroom is not private and what occurs there is not confidential. And when you are in the business of making money by putting patients in beds, you certainly don’t want the local news reporting on how bad the care in those beds really is.
She goes on to say why families don’t like these Agreements: “Because plaintiffs want to exploit jury biases against facilities.”
I beg to differ. Exploitation is not why I file lawsuits against long term care facilities when precious lives are taken and patients injured. Accountability is why we file lawsuits against facilities. And in a private confidential conference room process closed to public view, accountability is very hard to achieve.
So, if you can – avoid signing these. And if you can’t, call an experienced nursing home abuse lawyer who can help you try to revoke the procedure in a timely manner.