Kingston, New York Medical Malpractice Attorney Warns: Beware Of Arbitration And Nursing Homes

It is a difficult decision to place a loved on in a nursing home. When determining what nursing home to place a loved one in, many families look into the credentials of the nursing home and it’s staff, the care and service provided by the nursing home, the safety and accessibility of the nursing home, the cost of the nursing home and if applicable whether there are social events or recreational activities provided. Few families, if any at all, think about whether the nursing home has an arbitration agreement.

An arbitration agreement is an alternative dispute resolution agreement, where the parties agree that if a dispute arises, rather than going to court, the dispute will be resolved an arbitrator outside of the courtroom. Arbitration is an alternative to lawsuits. When arbitration occurs, the dispute is settled by and impartial third party, the arbitrator, and can be binding. If the arbitrator’s decision is binding, the parties cannot later sue each other over the same issue, nor can a party appeal the decision. (It is noted that there are limited circumstances where the decision is reviewable but they should not be relied upon).

So why is arbitration even a factor when choosing a nursing home? Many nursing homes have arbitration clauses in their admission papers. Since, many families are choosing to send their loved one to a nursing home under stressful conditions, they may sign the nursing home’s admission papers without fully reading them or fully understanding exactly what they are agreeing too. And if something happens to a loved one due to the negligence of the nursing home, the family will be prevented from bringing a lawsuit against the nursing home; instead will be forced to arbitrate.

Some might think that arbitration sounds like a good thing and it can be for some individuals in certain situations. However, arbitration can be just as expensive if not more expensive than a regular lawsuit. Under arbitration, you still need an attorney, however, unlike with a lawsuit, you will be required to cover the costs of the arbitration. In certain lawsuits, the losing party can be ordered to pay the legal expenses of the prevailing party or as with many personal injury attorneys’ they are not paid unless the plaintiff wins. However, these options are not available for arbitration. Additionally, under arbitration, there is no jury, only the decision of the arbitrator. While in a lawsuit, you get to choose to have a jury. Between 2003 and 2011 a study found that when arbitration was used 30% of cases were resolved with no monetary awards, while when arbitration was not used only 19% of claims were resolved without monetary compensation. Essentially, some have wrote that arbitration awards help the nursing homes and not the patients.

It is important to understand the papers you are asked to sign when you are looking into a nursing home and to understand the potential consequences of arbitration. Arbitration suits the nursing home because it helps limit their liability costs, however, it might not suit you and your family, so please read carefully when making this decision.

But what do you think? I would love to hear from you! Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at jfisher@fishermalpracticelaw.com . You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.