We write about this issue frequently – being asked to waive your access to the local court system, in a nursing home contract. I would venture to say that at least 75% of Virginia Nursing Home contracts have arbitration agreements in them today.
It isn’t just a Virginia issue however – Today’s Wall Street Journal and Law Blog:
How far should arbitration go?
“That’s at the heart of a debate that has taken shape as nursing homes have dramatically increased their use of arbitration in recent years, according to this page-one article in WSJ.
Many homes now ask incoming residents to sign an agreement that they will arbitrate any future dispute over care, even those involving death. It’s one thing to waive your right to trial over a cell phone dispute, but what about a complex medical claim?
Trial lawyers, consumer advocates and some legislators say that entering a nursing home is stressful: elderly patients and their families, they say, are presented with a stack of admissions papers and often sign away their right to trial without realizing it.
And arbitrators, they say, are far less likely to award substantial sums.
Nursing homes don’t contest that point: arbitration has allowed them to better sidestep the sort of massive awards that became common starting in the late 1990s. The reason is simple: arbitrators are less apt to be swayed by emotion.
But arbitration has decided advantages for plaintiffs and defendants, including that it can be quicker and cheaper than court cases, according to nursing homes. And that, they say, mean that homes can spend more time and money on care, and less on litigation.
The debate may now play out in Congress, where a bill was filed Wednesday to effectively ban the use binding arbitration agreements in advance of a dispute over care.”
Could awards be less – yes, but what is so hard, is the limited access to actual information in arbitration. No access to subpoenas, depositions – you are very limited in the information you can access, and that is why we lobby against them. Sadly, nothing will change until consumers stand up and refuse to be patrons to businesses that require these contracts….