If you’ve ever played Monopoly, you’ve probably heard of a “get out of jail free” card. For nursing homes across the country, forced pre-dispute arbitration clauses serve the same purpose. The only difference is nursing homes are using their clauses to get out of real-life wrongdoings.
According to Henry A. Waxman, one of the original authors of the Federal Nursing Home Reform Act, forcing pre-dispute arbitration agreements allows nursing homes to evade accountability altogether. Waxman calls forced arbitration “a mockery of the law I helped write and of my decades of work in Congress to strengthen patient rights.”
What is a Pre-Dispute Arbitration Agreement?
A pre-dispute arbitration agreement requires both parties to resolve future disagreements in arbitration. By signing one of these agreements before problems arise, you are waiving your 7th Amendment right to a trial by jury. You are also adhering to privacy, as most agreements do not allow you to discuss your case outside of arbitration court.
Signing Under Duress
If your elderly mother has a stroke or medical emergency and must go straight from a hospital to a nursing home, you will have to sign paperwork upon admission. If this paperwork contains an arbitration agreement, you might not have the time to dispute it. Plus, if you don’t sign, you are putting your mother and the care she needs at risk, as a proposed federal regulation would allow the nursing home to refuse care without a signature.
Waiving your constitutional rights in a state of duress is egregious, especially when you consider the following section:
1 in 3 Nursing Home Residents Are Harmed
As Waxman explains, “more than one of every three patients admitted to a nursing facility has suffered a medical error, infection, or other serious injury.” When you sign a pre-dispute arbitration agreement, you will not be able to investigate the causes of this harm in court. Even if your mother has been obviously neglected or abused, you will have to resolve the matter in arbitration.
This process not only protects nursing homes from exposure and forced action, it is handled in a system of notoriously unfair “courts.”
In arbitration, the outcome is typically rigged against you as the plaintiff. Arbitrators are hired by the defendant (the nursing home) and have a financial incentive to side with them. (Favorable outcomes lead to repeat business.) To make matters worse, plaintiffs are not allowed to appeal the arbitrators’ decisions, regardless of their legal training. As we mentioned before, arbitration takes place in secret and plaintiffs are often under a gag order, which forbids them from raising concerns with outsiders. If your issue is handled in arbitration, you cannot even contact a state inspector.
Fighting the Denial of Justice
At The Law Office of Mark A. Redmond, we do not support the regulations proposed by the federal Center for Medicare and Medicaid Services. Our firm agrees with Mr. Waxman and is dedicated to keeping our clients safe from these injustices.