An increasing number of nursing homes have implemented forced arbitration agreements within their admissions process. This has resulted in elderly residents and their family members signing away their constitutional rights and protections in order to obtain care within these facilities. However, consumers should be aware that nursing home arbitration agreements are inherently unfair and disadvantageous to vulnerable elderly residents and their family members. Therefore, it is important that residents and their family members understand what an arbitration agreement is and realize that they are not required to sign or agree to them.
What is an arbitration agreement?
An arbitration agreement states that the resident agrees that if a dispute arises between the facility and the resident, the resident will agree to bring the dispute before a professional arbitrator, rather than file a lawsuit with the court for resolution in front of a jury. When a case is taken to an arbitrator, the arbitrator will make the final decision and appeals are not allowed as arbitration is conducted in private and is not subject to judicial review. Therefore, arbitration agreements may essentially have the effect of allowing nursing homes to escape accountability for their wrongdoings since these agreements prevent residents and their families from suing the facility if their loved one was to suffer injury, harm, or even death while under their care.
What does California Law require?
It is important to note that in California, under the California Health and Safety Code § 1599.81(a), nursing homes are forbidden from requiring residents or their families from signing arbitration provisions in order to obtain admission into a facility or to continue their stay in such facilities. Additionally, under California Health and Safety Code § 1599.81, California also requires that nursing homes place arbitration agreements on forms separate from the admission agreement documents, and states that a resident may not waive their ability to sue the facility for violations of their Patient’s Bill of Rights. However, even with such laws in place, residents and their family members must remain cautious. They should ensure preservation of their constitutional right to take their case to court if necessary by refusing to sign arbitration agreements.
Why are arbitration agreements inherently unfair to elderly residents?
Some may argue arbitration carries benefits for consumers, such as quicker resolution of disputes compared to resolution through the courts. However, ultimately, arbitration agreements are generally not in the best interests of residents and their families for numerous reasons.
Disadvantageous monetary implications will arise because the arbitration process may be much costlier to elderly residents and their families. Not only will residents likely need to hire an attorney, but will also have to incur costs for the arbitration and will need to pay the arbitrator, who may charge hundreds of dollars an hour. On the other hand, if residents were to take their case to court, they would not be responsible for paying the judge who is paid by taxpayers. Additionally, some elderly nursing home residents may not pay court costs if they qualify for fee waivers due to Medi-Cal or SSI. Furthermore, studies have demonstrated that there is generally a greater likelihood that the resident will not only lose in arbitration, but if they were to win, they would also recover less in damages than if they took the case to trial.
Arbitration agreements are also inherently unfair since many residents who sign these agreements usually sign without fully understanding what it is they are signing. For example, these arbitration agreements are embedded as a part of the admissions process and are presented as standard. Thus, they may be easily overlooked by frantic residents and their families who are in need of immediate care, and it may easily be the case where people sign the agreement while failing to understand the immense impact it may have if something were to go wrong. Additionally, residents who suffer from mental ailments, such as dementia, may be impaired in their ability to understand the implications of agreeing to sign such legal documents.
These vulnerable elderly residents and their loved ones may be particularly susceptible to signing arbitration agreements due to the nature of their circumstances. Since they are in the midst of a stressful situation, they are likely to sign these agreements for fear that if they decline, their loved one will be denied admission or care. However, again, it is important to know that under California law, nursing homes may not refuse admission to the facility or evict a resident for this reason alone.
Therefore, in order to preserve your constitutional right to sue the facility for wrongdoing, and to have the power to hold a facility accountable for wrongful acts, be aware of your rights. Refuse to sign the arbitration agreement, as it is not a requirement to receive admission or care. However, if your loved one is already residing in a nursing home and has already suffered injury from the facility’s wrongdoing, they should be held accountable for their actions. At the Law Offices of Ben Yeroushalmi, our team of attorneys is prepared to put an end to nursing home practices that diminish the quality of care for residents, putting their health at risk. If your loved one has suffered elder abuse or neglect in a nursing home or if you believe a nursing home failed to provide adequate care to prevent or treat nursing home injuries, please contact us today at (888) 606 – 3453 for a free consultation. We are located in both Northern and Southern California and serve every city state-wide. We will fight to protect your loved one’s best interests and hold the responsible parties accountable.