Mandatory Arbitration Provisions in Florida Nursing Home Disputes

An appeals court recently addressed an arbitration agreement contained in a residency agreement on behalf of a Florida assisted living resident. The assisted living facility (“ALF) appealed a trial court’s order denying their motions to dismiss and to compel arbitration under an arbitration agreement.

The case arose when the resident’s estate (“Estate”) filed a complaint against the ALF for injuries the resident sustained while residing at the facility. The Estate’s complaint included causes of action for negligence, wrongful death, breach of fiduciary duty, civil conspiracy and violations of Florida’s Deceptive and Unfair Trade Practices Act. In response, the ALF filed motions to compel arbitration according to the arbitration agreement contained in the residency agreement, which was signed by the resident’s attorney-in-fact. The trial court denied the motions finding that the agreement was unconscionable and unenforceable.

The appeals court explained that in Florida, arbitration is mandated when:

  1. There is a valid written agreement to arbitrate.
  2. There is an arbitrable issue.
  3. The right to arbitrate was not waived.

Here, the court analyzed whether the agreement was procedurally unconscionable and found that the contract was one of adhesion—it is a standardized contract offered on a take it or leave it basis. Next, the court found that while some substantive unconscionability existed in the agreement, the confidentiality provision was not. As such, the court found that the agreement was enforceable because the offending provisions of the agreement may be severed without disrupting the parties’ intent to resolve their claims through arbitration.

This case highlights the many issues that Florida nursing home and assisted living facility residents face when filing complaints against a negligent facility. As of 2019, nursing homes cannot require residents to sign an arbitration agreement as a requisite to admission. However, many continue to include this clause in their agreements without the appropriate provisions that explain the resident’s rights.

Facilities that continue to include arbitration agreements must explicitly inform the resident or their representative of their rights not to sign the agreement as a condition of admittance or continuity of care. Further, the facility must ensure that:

  1. It explains the agreement to the resident in a way that the resident or representative understands;
  2. The resident must acknowledge that they understand the agreement;
  3. The agreement must provide for the selection of a neutral, agreed-upon arbitrator; and
  4. The agreement provides for a venue that is convenient to both parties.

If a nursing home fails to include this and other relevant information, the arbitration agreement may be invalid.

Have You Suffered Injuries at a Florida Nursing Home

If you or someone you know has suffered injuries because of the negligence of a nursing home or assisted living facility, contact the Florida nursing home abuse and neglect attorneys at Friedman, Rodman, Frank & Estrada. The lawyers on our team have extensive experience successfully resolving various types of negligence and wrongful death disputes. In addition to Florida nursing home abuse and negligence complaints, our office handles claims stemming from car accidents, premises liability, and medical malpractice. We have recovered significant amounts of compensation on behalf of Flordia injury victims and their loved ones. Contact our office at 877-448-8585 to discuss your case with an experienced lawyer on our team.




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