A Possible Return to Mandatory Arbitration in Nursing Home Abuse Cases

Screen Shot 2017-07-18 at 6.58.54 PM.pngThe history of nursing home residents’ right to sue the facility in the event they suffer an injury is long and complicated. In the not-too-distant past, nursing homes could force new residents to sign a contract in which the resident and his or her family members would agree to submit any dispute to mandatory arbitration. Requiring residents to arbitrate their disputes was widely seen and criticized as a move designed to limit the amount of compensation a nursing home might have to otherwise pay in the event a resident was injured or died as the result of abuse or neglect.

Then, during the latter part of 2016 the Centers for Medicare and Medicaid Services (CMS) passed a rule prohibiting any nursing home that received federal funding from forcing these mandatory arbitration clauses on patients. Now under the Trump administration, CMS had proposed rescinding the Obama-era rule and allowing nursing homes across the country to once again force residents to sign mandatory arbitration agreements.

Arbitration Hurts Injured and Abused Nursing Home Residents

In arbitration proceedings, parties that have a dispute or disagreement submit their claims and evidence in support of their claims to a third-party arbitrator. The arbitrator hears and reviews the arguments and evidence of the parties in a sort of “mini” or “abbreviated” trial and, upon the conclusion of this presentation of evidence and argument renders a decision in favor of one party or the other. Depending on the specific provisions of the arbitration agreement, arbitration may be the only legal remedy available to the injured resident.

A study conducted by Public Citizen and cited by Valley News found that arbitrators in disputes involving California credit card and bank and their clients ruled in favor of the credit card companies and banks in 94% of cases. Another study, this conducted by the American Health Care Association (and also cited by the same Valley News article) found that those awards received by nursing home residents through arbitration were approximately 35% less than what the resident could reasonably have expected if the case had gone to trial instead of arbitration.

What Does this Mean for Nursing Home Residents in California?

If the contemplated CMS rule does go into effect, individuals who are preparing to admit their loved one into a nursing home facility should expect to see admission paperwork that includes clauses requiring the resident and/or his or her guardians and family to agree to mandatory arbitration. Families will need to decide whether the benefits of a particular nursing home are worth the challenges and difficulties of a mandatory arbitration clause.

Case Barnett Law is committed to protecting the rights of the elderly, especially those who have been or who may be abused while at a nursing home facility. We would be happy to discuss your rights and the legal recourse available to you if your loved one has been hurt while at a nursing home or if you are simply concerned about how an arbitration clause might affect your loved one’s rights in the future. Call us at (949) 861-2990, or reach out to our firm online.

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