Nursing Home Arbitration Contracts Still Common, Despite Being Disfavored

Nursing homes have come under fire over the past few years for the manner in which they get residents and their families to give up their right to pursue a case against the nursing home in court. Often, these arbitration clauses are, at best, written in small text hidden among countless other pages of documents or, at worst, presented to residents in a take-it-or-leave it fashion, such that if they refuse to sign their application will be rejected.An arbitration clause is not so much about what a nursing home resident is getting, but about what they give up. Under the U.S. Constitution, everyone has the right to access the court system to resolve grievances; however, that right can be waived through an explicit agreement to arbitrate all claims instead of using the court system. One of the problems with arbitration, however, is that it often puts a nursing home at an unfair advantage.

Thus, government agencies and watch-dog groups have been advocating for nursing homes to do away with arbitration clauses in their pre-admission paperwork. These are often presented to a potential resident or their family in a time of desperation, when the consequences of waiving their rights may not be fully realized. Notwithstanding that fact, nursing homes continue to include arbitration clauses in their pre-admission paperwork, although few have the gall to deny a resident admission if they refuse to sign it. Instead, nursing homes are relying on a resident not fully understanding what it is they are signing or simply overlooking the clause altogether.

Court Upholds Nursing Home Arbitration Clause Contained in Pre-Admission Paperwork

Earlier this month, an appellate opinion reversed a lower court decision to invalidate an arbitration agreement that was contained in the defendant nursing home’s pre-admission paperwork. The plaintiff signed the arbitration clause, which explicitly stated it was voluntary and admission into the nursing home would not be denied if the plaintiff refused to sign.

After the plaintiff left the nursing home, he filed a personal injury suit to recover for the injuries he claimed he received due to the negligence of the defendant nursing home. The nursing home unsuccessfully sought to dismiss the case based on the arbitration contract. In so holding, the court explained, among other things, that the contract was against public policy based on a 2016 federal regulation prohibiting nursing homes that receive Medicare funding from including arbitration agreements in their pre-admission contracts.

The court reversed the lower court’s decision on appeal, in favor of the nursing home. The court determined that, at the time the arbitration agreement was signed, the regulation had not yet been passed, and the court was unwilling to retroactively apply it to invalidate the agreement. The plaintiff made other arguments against the enforcement of the contract. However, the court rejected each of the plaintiff’s arguments and upheld the agreement.

Is Your Loved One at Risk?

If you have a loved one in a Florida nursing home, and you are concerned that they are not receiving the treatment that they need and deserve, contact the law offices of Friedman Rodman & Frank. At Friedman Rodman & Frank, we represent nursing home residents and accident victims in those responsible for their injuries. To learn more, call 877-448-8585 to schedule a free consultation to discuss your case with a dedicated Florida personal injury attorney. Calling is free, and you will not be billed for our services unless we can assist you in obtaining the compensation you deserve.

More Blog Posts:

Accident Victim’s Failure to Provide Immediate Notice of Case May Preclude Recovery, South Florida Personal Injury Lawyers Blog, published June 19, 2017.

Court Limits Employer’s Duty in Recent Case Stemming from Pedestrian-Railroad Fatality, South Florida Personal Injury Lawyers Blog, published July 5, 2018.

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