Arbitration clauses take away nursing home residents’ rights to go to court says Boca nursing home negligence lawyer Joe Osborne.
Arbitration is a way to resolve a legal dispute instead of a trial. It’s a private trial, not a public one in court and the problem is the ground rules by which these arbitrations take place can essentially take legal rights away from Florida nursing home residents and their families. Boca nursing home negligence lawyer Joe Osborne says if possible don’t sign an agreement with a nursing home mandating that legal disputes be resolved through arbitration.
In this process an arbitrator (usually a lawyer or retired judge), or panel of arbitrators, acts as the judge and jury in the case. Both sides present evidence and make legal arguments in a private setting, not in a public courtroom. Many nursing homes have in their contracts language that at least tries to prevent residents and their families from filing civil lawsuits over injuries and wrongful death claims. If you need to quickly find a nursing home for a loved one it may be difficult, if not impossible, to “shop around” for a good facility that doesn’t require arbitration.
In many cases it’s the nursing home that sets up the rules for the arbitration. They decide who the arbitrators are and as a result an arbitrator may be tempted to decide in the nursing home’s favor in order to get more arbitration cases. The rules may also restrict what evidence can be used and generally it’s very difficult to appeal an arbitration ruling.
In late 2016 the Obama administration issued a rule stating that if a facility wanted to use Medicare or Medicaid funds it couldn’t force residents to resolve disputes through arbitration. That rule was challenged by the nursing home industry and prevented from going into effect. Whether the rule will be defended in court, changed or removed by the “business friendly” Trump administration is unknown. What is known is that many families aren’t taking this lying down.
Whether an arbitration clause is valid and enforceable or not under the law depends on its language and the circumstances of each case. The Florida Supreme Court in September ruled that a contract with a forced arbitration clause signed by the nursing home resident wasn’t binding on his family, who sued his nursing home due to his death.
Late last year the U.S. Supreme Court agreed to hear an appeal of a Kentucky decision that a nursing home’s mandatory arbitration clause was invalid against the daughters of their deceased parents who were residents. The daughters signed contracts with arbitration language in it but the Kentucky Supreme Court found residents have a “God given right” to go to court and the parents didn’t authorize the daughters to sign the forced arbitration agreement on their behalf. The issues to be decided will be whether arbitration-friendly federal law supersedes Kentucky state law.
The story of one family fighting for its right to sue a negligent nursing home is in a recent edition of the Minneapolis Star Tribune. Though the death of 89 year old Gerald Seeger occurred in Minnesota, these situations happen all over the country, including Florida, all the time.
Seeger had a history of hernias. Before his death Seeger suffered for hours, vomiting and telling staff of pain in his badly swollen abdomen. Staff didn’t call for an ambulance but his daughter Joan Maurer did but it was too late. State investigators found the nursing home failed to provide medical attention in a timely manner.
Staff ignored, or were ignorant of, a physician’s instructions to notify medical professionals immediately if Seeger had any pain or tenderness in the groin area. He complained of stomach pain and vomited but staff didn’t promptly report it to a nurse, state investigators found. A lawsuit filed by the family is being challenged by the nursing home because of a mandatory arbitration clause.
If a family member living in an assisted living facility or nursing home in Miami-Dade, Broward or Palm Beach Counties and is the victim of negligence, neglect or abuse, contact Boca Raton nursing home neglect lawyer Joe Osborne at (561) 293-2600 or fill out this online contact form. We can talk about the situation, how the law could apply in your case and the best legal options to protect your rights and obtain compensation for your loved one’s injuries.