Last January I wrote a blog on the Fairness in Nursing Home Arbitration Act (then Senate Bill . 2838 and now Senate Bill 512) The last report from Congress is that the bill was referred to committee in July. I said then that we all need to keep an eye out for the bill and write our Senators. With Congress in the midst of debating and considering the health package now is a good time to ask them to pass this bill to protect our elderly.
The bill would amend the Federal Arbitration Act (FAA) to invalidate mandatory binding arbitration contracts that are unfair to the elderly because they take away their right to be heard in a court of law and increase their vulnerability to neglect and abuse in a care facility.
The bill does not prohibit arbitration. Rather, it would ensure that the resident or his or her representative could voluntarily choose arbitration after a dispute arose. If arbitration is truly fair and efficient, as some have argued, then both sides should be able to voluntarily choose arbitration after – not before – a dispute arises.
I have seen nursing home corporations insert forced arbitration clauses in their contracts and have them signed by residents who have dementia, by family members who are told they have to sign the whole agreement or their loved one will not be admitted and by the nursing homes own employees who forge signatures. Why do the nursing homes want arbitration so badly? Because it means they will never be held publicly accountable for their actions, no matter how egregious their conduct. Then when a decision is made by most likely a hand-picked arbitrator, the patient is denied the opportunity for judicial review.
On the other hand, if allowed to utilize the court system, society benefits from an open legal process that exposes nursing homne neglect and abuse. One of the most important benefits of civil lawsuits is the discovery process, which often discloses shoddy corporate practices, such as staff reductions, that lead to neglect. Forced arbitration, on the other hand, restricts residents’ ability to get information and keeps abusive business practices hidden.
So again I urge you to contact your representatives in Congress and let’s get this bill passed!
Civil litigation attorney Billy Cunningham practice concentrates on personal injury, wrongful death, nursing home abuse, business litigation, environmental law and insurance matters. He is licensed to practice in the state and federal courts of Alabama and Mississippi, as well as in the U.S. Court of Military Appeals, U.S. Court of Appeals for the Fifth Circuit and the Supreme Court of the United States.
JILL PAUL RN
Billy, thank you for bringing this bill to our attention. Senate bill 512 should definitely be passed. Ditto The Medical Device Safety Act. Please email your Congressmen/Women and Senators and ask for their support of these 2 bills. We need them both passed now. Thank you.
J W Wayne
I will contact my Senator, but the purpose will be to ask him to vote against this bill. I note you want to "ensure that the resident or his or her representative could voluntarily choose arbitration after a dispute arose." You go on to explain that if arbitration is fair, it can be chosen after a dispute arises. But, who will advise the plaintiff that arbitration is a good, fair and equible means of dispute resolution? Attorneys make their living by litigating, not arbitrating. I have arbitrated several disputes in business and personally and found them to work out well ... and much faster and cheaper then litigating the disputes. One was with a cable tv company, which I won everything I asked for, and the second was a contractual dispute with a contractor in which I ended up with more then I demanded because the arbitrators found construction defects that my attorney and his experts missed. It is interesting that my attorney didn't want to arbitrate, I had to insist that he file a motion to demand the contractor arbitrate, even though it was his arbitration clause in the contract, inwhich he stipulated the arbitration rules and demanded that I agree without negotiation. The arbitration company he picked was the one that found in my favor. I'm now entirely sold on arbitration.
Comments for this article are closed.