Arbitration clauses have become more and more common in many types of contracts between consumers and businesses over the last 50 years, However, the dramatic increase in the use of arbitration clauses in medical care agreements should be of special concern to consumers and their advocates. By agreeing to an arbitration clause, a patient or their family may be giving up their right to sue the other party in state or federal court and instead assenting to resolve disputes through what is known as binding arbitration. Binding arbitration is a process that closely resembles a judicial proceeding, although the “judge” of an arbitrated dispute is simply a private party, and the court rules and procedures that are used in judicial proceedings may not apply.
Binding arbitration is promoted by companies and industry groups as a simplified way of resolving disputes that could get out of hand if they were processed through a full-fledged judicial proceeding. Complainants are legally entitled to a fair process through arbitration, and state and federal laws are applied to their claims.
In reality, the differences between an arbitration proceeding and a judicial proceeding almost always favor the large company, with consumers and patients receiving the short end of the agreement. A recent New York Times article discussing the use of arbitration agreements in nursing home contracts notes that although agreeing to binding arbitration cannot be mandatory for a prospective patient, the agreements are often structured to hide that fact. Many consumers agree to arbitrating potential disputes because they don’t know they have the right to refuse it.
Many Patients Accept Arbitration Because They Don’t Expect Any Misconduct or Disputes
An unfortunate and ironic fact related to the widespread use of arbitration clauses is that the trusting and faithful consumer who believes that a nursing home will take good care of their loved one is often the most likely to be taken advantage of by an arbitration agreement. If a patient or their family members have faith in the nursing facility with which they are contracting to provide adequate care, they are generally not overly concerned about the procedures they will undergo in the event of a mistake or dispute. According to the news report, families of nursing home patients are in an especially vulnerable position because of the stress related to selecting a nursing facility for a loved one and the inherent inexperience with such decisions that the average family member will have when making the decision.
What Should Patients and Their Families Do When Confronted With an Arbitration Clause?
Government-backed proposals set to become permanent in September 2016 state that signing a forced arbitration clause cannot be a condition of admission to a nursing facility, although the facility may not always make this as evident as they should. Patients and their families should decline to sign a proposed arbitration clause if it is included with a nursing facility contract, and they should seek legal recourse if the facility claims the arbitration agreement must be signed. For families who encounter a dispute or nursing home abuse after agreeing to an arbitration clause, legal assistance can be even more helpful.
State and federal courts have ruled in the past that various types of arbitration clauses are not enforceable, allowing a claim to be addressed by a standard judicial proceeding. Additionally, claimants are allowed to have legal representation in an arbitration proceeding, and a represented party often receives a fairer process in arbitration than those who try to seek relief on their own.
Legal Representation for Nursing Home Disputes and Abuse
If you have a family member who has been a victim of nursing home abuse or neglect, legal recourse may be available to protect the rights of your loved one. Whether you have agreed to binding arbitration or not, the Virginia, Maryland, and Washington, D.C. nursing home abuse attorneys at Lebowitz & Mzhen, LLC can help represent you in your claim. At Lebowitz & Mzhen, LLC, we accept cases in Maryland, Northern Virginia, and the entire D.C. area related to nursing home abuse, neglect, and other disputes. Call us toll-free at 1-800-654-1949 or contact us online to schedule a free consultation today.
More Blog Posts:
Plaintiff’s Failure to Produce Expert’s Report in a Timely Manner Results in Early Dismissal, Maryland Nursing Home Lawyer Blog, published July 12, 2016.
Court Holds Family Member of Nursing Home Resident Cannot Consent to Arbitration Unless Resident Is Deemed Incompetent by Primary Care Physician, Maryland Nursing Home Lawyer Blog, published July 19, 2016.