Increasingly, nursing homes are requiring that residents give up their right to jury trial upon admission to a facility. We encourage our colleagues who represent consumers and their families to advise against signing these agreements.
Placing a loved one in a nursing home is one of life’s most stressful events. The stress is compounded by the blizzard of paperwork that is thrown at the family during this difficult time. Admission agreement, responsible party agreement, guarantor agreement, assignment of benefits, resident personal account, medical release, notice of privacy practices — these are just a few of the dozens of documents that residents (or a family member, acting as the resident’s representative) are required to sign upon admission.
Sometimes hidden in this mountain of documents is an arbitration agreement. The arbitration agreement may be glossed over by the admission representative as “just another document we need to you sign” near the bottom of a pile of documents. The arbitration agreement may look like this:
“We do not expect that you will be dissatisfied with any of the services provided to you during your stay. However, no matter how much effort each of us puts into our new relationship, there is always a possibility that a dispute may arise between us for a variety of reasons. Historically, when differences have arisen between a resident and a facility that were unable to be resolved informally, a lawsuit may have been filed in state court. Needless to say, formal litigation involving the state court system has proven to be an exhaustive and time-consuming venture for all parties. Through a voluntary arbitration program entered into via the voluntary arbitration agreement, we are offering a less formal manner to reach a final determination. The program is designed to resolve residency related disputes in a more efficient manner than claims brought in state court.”
Nowhere does this language mention that the resident is giving up her right to a jury trial if she suffers neglect or abuse. And, the resident gets nothing in return for signing the agreement. In many cases, the resident and her family do not realize that the nursing home resident’s rights have been taken away until after a fall, an infection caused by an untreated decubitus ulcer, severe dehydration and malnutrition, or some other failure of care resulting in severe injury or death.