Nursing home arbitration clauses have been in the news a lot lately. In state after state, courts have refused to enforce them in some cases. This is a big change from previous years when the clauses were routinely enforced.
As the New York Times reports in "Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?" this change is not accidental.
The change itself results from a change in strategy by lawyers litigating the cases. The lawyers are using technical reasons to have the arbitration clauses thrown out.
The case discussed in the article offers a good example of why elder law attorneys are so opposed to arbitration clauses.
A 100-year-old woman was suffocated to death by her nursing home roommate who had dementia. Evidence suggests the nursing home was aware that the patient with dementia was dangerous and did not adequately protect the 100 year old. When her son attempted to sue the nursing home for wrongful death he was forced into arbitration.
The arbitrators had previously taken over 400 cases from the nursing home’s lawyers. In this case, they ruled against the son without bothering to give any reasons for doing so.
The fight against nursing home arbitration clauses is not limited to the courts. Some 16 states and the District of Columbia have requested that Medicare and Medicaid deny payments to nursing homes with arbitration clauses in their contracts. A group of Senators has introduced proposed legislation to ban the clauses entirely.
Reference: New York Times (Feb. 21, 2016) "Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?"