Nursing home abuse arbitration has been the subject of some litigation over the last many years. Many nursing home contracts contain a mandatory nursing home arbitration clause requiring that any disputes between the patient and the nursing home,whether it be one of nursing home abuse or otherwise, be submitted to either a single arbitrator or a board of arbitrators for resolution. That deprives the patient of their right to a jury trial.
It is well established that any intelligent adult can voluntarily waive their right to a jury trial. The waiver however that exists in nursing home arbitration contracts may, in some instances, be unconscionable because the patient frequently is not the one who is making the decision about admission and the circumstances of admission are normally such that the family and/or decision maker is under the gun to make a prompt decision because the person has to be placed in some facility.
The down side of arbitration of claims against a nursing home is the lack of the right to a jury trial, the increased cost of having to pay one or more arbitrators to decide the case in addition to having to pay your own attorney and the fact that arbitration awards that are decided by arbitrators tend to be smaller awards than cases that are submitted to a Judge or jury for a decision. In addition, arbitration awards are typically confidential and therefore there is no public record as to what has gone wrong at this nursing home. A Court decision typically is not going to be governed by any such confidentiality unless there is a settlement that is reached that provides for such.
The one advantage to arbitration as opposed to litigating a nursing home case in Civil Court is that arbitration can be more expeditious, i.e. you get a quicker decision.
In those instances where you or someone on your behalf has signed a nursing home arbitration contract that contains an arbitration clause and you later on want to disown it you need to look at whether or not there is an opt-out provision within the nursing home agreement. That is, many nursing home agreements have a right to opt-out of the nursing home arbitration agreement within 30 days after you have signed it. That opt-out provision is intended to give you a chance to “cool off” and to more intelligently review the contract that has been entered into. In addition, it is possible to claim that the arbitration requirement is simply unconscionable, i.e. that it simply was too much to expect that a person making a decision about nursing home care could intelligently review and evaluate multiple pages of a nursing home contract that contains an arbitration clause probably hidden in the small print. That argument in Virginia is probably a tough argument to make but it certainly is available.
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