Mandatory arbitration agreements have become a common staple in the nursing home admissions process. These documents are shoved in front of patients and/or their loved ones with little explanation of the fact that a signature amounts to the loss of significant civil rights in the event the patient is neglected or abused.
That means patients and their loved ones are denied justice, and the nursing homes can evade accountability.
Now, a legal advocacy group is pushing the federal government for forceful action on this issue. The group Public Justice has filed extensive comments with the Centers for Medicaid & Medicare Services (CMS), calling on the agency to cut funding to any nursing home that requires arbitration agreements. The agency is said to be seriously considering such action.
In a 32-page report, the advocacy group outlines why arbitration agreements are so harmful to patients, and why it’s in the public interest to act.
These agreements are thrust upon patients and their families and essentially say the patient and/or legal representative agrees to have disputes (such as those concerning nursing home abuse, neglect and other wrongdoing) handled by a third-party arbitrator, rather than in civil court by a judge. While some of these clauses are later found unenforceable, many of them aren’t even challenged.
It’s clear why nursing homes would want to do this. First, arbitration agreements serve to reduce liability of nursing homes. A Wall Street Journal article cited indicates that once arbitration clauses started becoming commonplace in admissions paperwork, the cost to settle claims started to fall, even though the number of mistreatment claims were rising. Further, industry consultants have shown year after year that when arbitration agreements exist, essentially blocking patients and families from taking their cases to court, claims are settled for far less. So even when people suffer severe abuse and neglect resulting in death, families are forced to accept lower monetary compensation for those losses.
Nursing homes have countered that when they don’t have to cope with the crippling losses associated with personal injury lawsuits and wrongful death lawsuits, they can invest that money back into patient care. However as the advocates pointed out, that doesn’t actually happen. Particularly at for-profit facilities, arbitration clauses may reduce the number of lawsuits, but they don’t improve patient care. Many of these facilities are grossly understaffed, even while executive salaries are enormously inflated. The goal was never improvement of patient care. The savings these nursing homes have incurred by warding off these lawsuits has allowed them to pad their pockets, not make patients safer. If anything, evidence shows they are worse off because nursing homes lack accountability for wrongful actions.
And when cases are taken to an arbitrator, that person is not bound by prior case law or even the decisions of other arbitrators in the region. So the results are wildly unpredictable. What’s more, there is question as to the impartiality of those individuals. The industry has significant control in choosing the arbitrator, and conversely, it’s in the arbitrator’s best interest to earn repeat business from the provider. The cards are stacked against plaintiffs in these proceedings from the start.
And what’s worse, these proceedings are usually confidential. Unlike in civil court, which is a public procedure, open records laws don’t apply to arbitration. So nursing homes get the benefit of protecting their reputation from media scrutiny.
Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.
Additional Resources:
Corporate America’s Latest Target: Nursing Home Patients, Oct. 15, 2015, By Paul Bland, The Huffington Post
More Blog Entries:
Report: Resident-on-Resident Abuse a Pervasive Problem in Nursing Homes, Oct. 20, 2015, Broward County Nursing Home Abuse Lawyer Blog