Help May Be On the Way for Colorado Nursing Home Patients
Nursing homes often bury arbitration clauses deep in admissions contracts, stripping injured residents and their families of the right to sue for harm. New legislation may change this practice.

September 11, 2009 /24-7PressRelease/ -- Help May Be On the Way for Colorado Nursing Home Patients

Article provided by The O'Connell Law Firm, P.C.
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The tragedy of nursing home abuse can be compounded when victims and their families find out that their right to be heard in a court of law has been stripped away. Nursing homes frequently bury clauses deep in nursing home admissions contracts that do just that. Usually these clauses, called arbitration clauses, are signed when a distraught family or potential resident is at their most vulnerable at the time of admission. Fortunately, a bill currently before Congress would do away with these forced arbitration clauses that protect nursing home corporations from being sued at the expense of families and the elderly.

The Fairness in Nursing Home Arbitration Act would amend the frequently employed Federal Arbitration Act to invalidate forced arbitration clauses at the point of admission to the home. Critics of the for-profit nursing home industry say the sole purpose of arbitration clauses is to shield the profit driven homes from their own negligence. These clauses force an injured resident or the family of a deceased resident to argue their case before a frequently pro-business arbitration panel instead of before an impartial jury. In exchange for this agreement to bypass the litigation process in favor of arbitration, the consumer gains virtually nothing.

In fact, some nursing home arbitration agreements state that large cases will be arbitrated, while smaller cases will be litigated in court. Of course, the average consumer does not know that an injured resident is more likely to have a large case, while nursing home grievances over payments are likely to be smaller. This allows nursing homes to be in court when they have a complaint, but before an arbitration panel when a consumer has a complaint.

Critics say the companies push the contracts on consumers who are often under pressure from doctors to find a nursing home bed as quickly as possible. Usually, an unsuspecting family or resident does not fully appreciate what they are signing. These critics and activists point out that the arbitration clauses typically enable nursing home corporations to select the arbitrator and dictate arbitration rules in disputes with residents and their families. Arbitration provisions then deny patients the opportunity to appeal decisions to a court.

Senators Mel Martinez (R.-FL) and Herb Kohl (D.-WI) said they introduced the bill in the U.S. Senate as a way to thwart the growing practice of nursing homes to require patients to agree to arbitration as the sole means of resolving disputes.

The Fairness in Nursing Home Arbitration Act would require that agreements to arbitrate nursing home disputes would be made after a dispute comes up, not at the time of patient admission. The Act doesn't prohibit arbitration; it simply ensures that arbitration is a voluntary forum both parties agree to use to settle their differences.

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