The operators of these nursing homes and long-term care facilities have an additional advantage over individuals and families who unwittingly agree to arbitration. Not only do the operators of the facilities draft the agreements, typically to their advantage, but they are typically dealing with a family in crisis and suffering emotional turmoil.
The situation is often caused by an illness or accident. An elderly parent can no longer care for themselves or have fallen or suffered some type of serious injury or illness. A hospital may be insisting on discharging the patient, and the adult children or their spouse have to make hurried arrangements to find some suitable facility.
For a spouse, there may be emotions of fear and guilt, as they are greatly concerned for the care of their husband or wife, and feel some measure of guilt that they cannot care for them any longer.
Adult children, likewise, feel guilt at abandoning a parent in a facility, but feel pressured and have little choice, especially if their parent requires specialized care or they both work and have no ability to provide the 24/7 care many demand.
This is hardly an ideal state from which to negotiate, not that is likely to be an option. Most nursing homes present potential residents with printed contracts which do not allow for any negotiated changes.
These contracts often prohibit punitive damages, which are designed to punish wrongdoing by entities and to prevent reoccurrences of the negligent behavior. By eliminating this option, these contracts effectively protect abuse and negligence by these facilities.
Fortunately, courts in some jurisdictions have thrown out these oppressive arbitration clauses. One such case occurred in Pennsylvania, so if a loved one has suffered negligence in one of these facilities, you should speak with an attorney to determine if your contract contains a potentially invalid arbitration clause.
Lawyersandsettlements.com, “Courts Continue to Quash Nursing Home Arbitration Agreements,” Gordon Gibb, October 14, 2014