Why Forced Arbitration Should Be Avoided at All Costs

Jeffrey A. Mega

Arbitration is a process where parties subject to a dispute agree to submit their dispute to an arbitrator or a panel of arbitrators. Arbitration can be voluntary, meaning that both sides agree to submit their dispute to arbitration after a dispute arises. It can also be forced, meaning that nursing homes and companies bury forced arbitration clauses into agreements with consumers before a dispute even arises. The distinction between these two types of arbitration is critical, and the latter type (forced arbitration) should be avoided at all costs.

In a disturbing trend, more and more nursing homes are burying forced arbitration clauses into their admission paperwork. Forced arbitration clauses favor nursing homes by depriving victims of neglect, malpractice, and wrongful death of their fundamental right to a jury trial. These clauses are almost always favorable to the nursing home. They usually name the arbitration company that must be used – obviously one preferred by the nursing home. Family members admitting a relative into a nursing home should review the admission documents and require the nursing home to take forced arbitration clauses out of the contract.

The New York Times recently examined records from more than 25,000 arbitrations between 2010 and 2014 and interviewed hundreds of lawyers, arbitrators, plaintiffs and judges in 35 states, and “uncovered many troubling cases” of forced arbitration. The publication’s three-part story exposed how big businesses, including nursing homes, are creating this alternate system of justice with rules which are stacked against patients and consumers. The article concluded that “to deliver favorable outcomes to companies, some arbitrators have twisted or outright disregarded the law.”

According to the New York Times article, more than 100 cases against nursing homes for wrongful death, medical malpractice and elder abuse were forced into arbitration, instead of getting their day in court. These cases included allegations of a nursing home overdosing a patient on diabetes medication. In another case, a 94 year-old woman who died from a head wound that had been left to fester was forced to arbitration instead of court. Finally, a woman with Alzheimer’s disease was sexually assaulted twice by other residents of a nursing home in California. The department of health investigated and found that the nursing home failed to protect the sexual assault victim.

Do not agree to give up your fundamental right to a jury trial when admitting yourself or a family member into a nursing home. Review the admitting documentation and strike out any provision which states that you must agree to forced arbitration.