Arbitration Agreements

If your loved one has entered a nursing home anytime in the last decade, there is a good chance there was an arbitration agreement buried in their stack of admission papers. These contracts have become increasingly common as nursing home administrators and investors seek to minimize their liability for damages when a resident is seriously hurt or dies as a result of abuse or neglect.

At The Ansara Law Firm, we understand that while most – if not all – nursing homes now require residents or their representatives to sign these agreements upon entry, they are not necessarily all upheld when a dispute does arise.

It’s been a contentious and evolving area of law in Florida and across the country in recent years. Proponents say it’s faster, less expensive and more efficient. Opponents argue injured plaintiffs tend to be disadvantaged by arbitrators who aren’t bound by rule of law and tend to favor corporations in proceedings that are kept secret.

Although Florida traditionally has favored arbitration agreements, the tide may be turning. Florida courts still do recognize arbitration as a valid alternative dispute resolution to litigation in a court of law. However, nursing home abuse, neglect and negligence claimants need to understand that arbitration is not necessarily a desirable avenue for you. There may be a number of ways we can successfully argue for your case should go before a judge or jury rather than an arbitrator. Because we fight for the most favorable outcome for our clients, our legal team is committed to getting your case through those courthouse doors so that your dispute can be heard in a fair forum.

What Is Arbitration? And Why Is It Troublesome?

Arbitration is a type of alternative dispute resolution. A third-party arbitrator – who is supposed to be impartial – is pre-selected to hear both sides of a dispute and then issue a final, binding decision. It’s intended to work as a faster, cheaper alternative to the court system, which admittedly can be costly and cumbersome.

However, one of the problems with arbitration is that the parties involved agree to give up a number of the safeguards guaranteed to litigants in a court proceeding. For example, they may forego the discovery process, in which both sides obtain information from each other.

Additionally, arbitration decisions are often confidential, which may deprive the public of accountability and future claimants from valuable information that could help in similar cases against the defendant nursing home.

Finally, arbitrator rulings tend to favor corporations. Some arbitrators or arbitration firms receive repeat business from these companies. Even when plaintiffs are awarded damages, the amounts tend to be less than what would be rewarded in a court of law. An analysis by Aon Global Risk Consulting revealed that of 1,449 closed claims involving long-term care providers over the course of eight years, 30 percent of those with an arbitration agreement resulted in no money awarded to plaintiffs. That’s compared to 19 percent of claims where there was no arbitration agreement. Approximately 8 percent of claims with arbitration agreements resulted in plaintiff damage awards exceeding $250,000, compared to 12 percent of claims with no arbitration agreement. Another study, conducted by the American Health Care Association, revealed arbitration awards are, on the whole 35 percent lawyer than the ones received by plaintiffs whose cases go to court.

In most nursing home abuse cases, plaintiffs have signed a pre-dispute arbitration agreement. That means that before there was any inkling of a problem, the nursing home resident or patient signed an agreement in which they conceded ahead of time to resolve their disputes before an arbitrator. In many cases, these agreements may be irrevocable. However, the legal tide is slowly turning, and an increasing number of plaintiffs are successfully challenging these pre-dispute arbitration agreements.

On What Grounds Can Arbitration Agreements Be Successfully Challenged?

Because arbitration agreements generally aren’t in families’ best interest. So how can you challenge them?

There are a number of situations in which an arbitration agreement signed during the nursing home admission process is not legally valid and thus not enforceable.

  • Resident lacked the mental capacity to sign it. These cases typically require some evidence that the resident had been declared legally incompetent and had an appointed guardian.
  • The claim is for wrongful death. A resident’s signature for arbitration of personal injury claim does not preclude family member’s court litigation for wrongful death, because wrongful death actions are separate and distinct from personal injury claims.
  • Third party lacked legal authority to sign. Resident’s spouse, child or other family member signed the arbitration agreement as his or her representative – but lacked the formal legal authority to do so. Numerous courts have held that even if a person signs as the resident’s legal representative, that alone is not sufficient to prove the person signing actually had legal authority over the resident. Only the law or a court can confer this status. Durable power of attorney may give spouses or children the right to make health care decision, but not necessarily to sign an arbitration agreement.

A number of state and federal lawmakers have been pushing for uniformity on this issue, fighting for a sweeping ban of pre-dispute arbitration agreements. Until that happens, you need an experienced, compassionate attorney to help you fight for fairness and a favorable outcome.

Call the injury attorneys at The Ansara Law Firm at (877) 277-3780 or locally in Broward at (954) 761-4011. Serving Broward, Palm Beach and Miami-Dade Counties.