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Forced Arbitration Clauses Deny Nursing Home Patients Their Right to Seek Justice

It is an unfortunate fact that nursing homes frequently use forced arbitration clauses that, once coerced to be signed by a resident, strips him of his legal rights and is rendered powerless in the event of a future dispute.  Former US Representative Henry Waxman recently published an op-ed in the Sacramento Bee (CA), outlining the reprehensible attributes of forced arbitration clauses and how nursing homes pressure patients and their loved ones into signing them before being admitted.  Unless the Center for Medicare and Medicaid Services calls for an end to forced arbitration, they will continue to be abused. As an original author of the Federal Nursing Home Reform Act that enabled the center to have regulatory authority over nursing homes, Waxman vehemently advocates for the ban of forced arbitration due to its primary use as a tool to avoid accountability.

Waxman acknowledges that no prospective resident of a nursing home anticipates to be wrongly treated or suffer due to malpractice. However, although most nursing homes ensure quality of care for their residents, far too many do not, and not all of their wrongdoings are noticed or rectified by regulators. According to Waxman’s report, one or more out of every three nursing home residents is a victim of a medical error, infection or other critical injury. Nursing home patients should have the power to seek justice when they become a victim of neglect, malpractice, or abuse. This should not only be their right, but should also be a necessary means of uncovering and demanding under-performing facilities to correct their flaws.

Predispute arbitration clauses take away this basic right from patients and their loved ones—an injustice that is further exacerbated by the fact that they are most often signed under duress. Moreover, a patient who chooses to take action after becoming a victim of abuse or neglect inadvertently falls into a “kangaroo court” in which a trial is corrupt and the cards are purposely stacked against him.  The nursing home picks the arbitrator, “who then has a financial incentive to side with the home to obtain repeat business”, but the victim is powerless to appeal the arbitrator’s decision, whose legal training is little to none.

Furthermore, the proceedings are undisclosed, meaning that the injustices that caused the patient to suffer will never be exposed. Waxman adds that the victim is often restrained by a gag order that prohibits him from speaking out, even to state inspectors.

Waxman expresses deep disdain to know that as an author of a law aimed to toughen patient rights, forced arbitration clauses are operating against his years of hard work in Congress to protect families in pursuit of justice.