This document discusses the increasing use of mandatory pre-dispute arbitration clauses in nursing home agreements. These clauses require residents to waive their right to have any disputes heard in court by a judge and jury. Instead, disputes would be decided by a private arbitrator selected by the nursing home. Some believe nursing homes use these clauses to avoid responsibility for negligence. The document advises examining arbitration clauses closely and considering other facilities if a clause is required, as an alternative may provide better care and peace of mind by not eliminating the option to seek justice in court.

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NURSING HOMES AND THE FINE PRINT
If you have a credit card, rented a car or entered into practically any kind of
consumer contract, then chances are you have bargained away the freedom to have any
future dispute decided in a public court of law before a judge. You have bargained away
the freedom to have any future dispute heard by a jury and you have bargained away the
right to appeal a bad decision.
In the fine print of your consumer contract, you have likely agreed instead to
mandatory pre-dispute binding arbitration by a professional arbitrator. These clauses
involve various procedures but often, an arbitrator selected by the company decides the
dispute. Rules of evidence are relaxed, exchange of information and evidence is limited,
substantial time limits are imposed and often there is no review of the decision.
Some contracts require you to share in the cost of the process including payment
of the arbitrator's fees. Although some businesses are beginning to question whether
arbitration really does save money and time, most companies seem to believe that

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mandatory arbitration keeps legal costs down. Most consumer advocates believe that the
only level playing field is provided by the courts.
More and more frequently these arbitration clauses are being slipped into nursing
home agreements. Some believe that nursing home corporations use these mandatory
arbitration clauses as a way of avoiding responsibility for any future negligence causing
injury or death to a resident.
Very often the decision to place a family member into a nursing home is an urgent
one and stressful. Anxious seniors or their families often sign every document put before
them without thorough a examination of them. Oftentimes neither the resident nor the
family have any idea that they have contracted away the right to bring a civil action in the
event the resident is neglected or mistreated.
However, while some nursing homes require the execution of a mandatory pre-
dispute arbitration agreement, not all of them do yet. It is essential to understand the full
impact of these clauses and to question whether the arbitration clause has to be signed. If
bargaining away the right to trial in a public court with a jury is required by the nursing
home as a prerequisite to admission, perhaps another facility should be considered.
Perhaps a facility confident of its ability to care for the elderly without eliminating in
advance any opportunity to seek justice in court in the event of neglect or mistreatment,
would provide better care and greater peace of mind. Before admitting a vulnerable
loved one to a nursing home, you might want to consider whether it is wise to bargain
away these principles of freedom.

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"In suits, between man and man, the ancient trial by jury is one of the
greatest securities to the rights of the people."
-- Virginia Bill of Rights
DISCLAIMER: This article is provided for informational
purposes only and does not constitute legal advice.
Duncan Garnett is a partner with Patten, Wornom, Hatten & Diamonstein, L.C.
His practice is focused on the representation of individuals and families who
suffer life altering injuries as a result of negligence. He can be reached at 757-
223-4550 or dgarnett@pwhd.com.
First published in The Oyster Pointer