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Arbitration in Nursing Home Disputes

Published on May 18th, 2019

Can a Nursing Home Force My Family to go to Arbitration with Our Legal Claim?

Nursing home contracts often include forced or mandatory arbitration clauses. These clauses require any legal dispute between the parties to go to arbitration instead of to the court system. One 2011 study found that in some areas anywhere from half to all of the nursing homes included these types of clauses in their contracts.

Arbitration is an alternate dispute resolution method. It is a private trial of sorts, with an arbitrator (normally an attorney or retired magistrate) sitting as a judge, making rulings of fact and law and making a final decision in the case (unless it settles). This method is not necessarily bad for plaintiffs, but in these contracts the rules are such that it can stack the deck against them. Some things plaintiffs should be concerned about are:

  • Access to evidence may be limited.
  • The losing party (there is a good chance that will be the plaintiff) may be responsible for the costs and legal fees of the successful party.
  • These decisions are very difficult to appeal to the court system.
  • Arbitrators are normally chosen and paid by the nursing homes. There is a built in incentive for the arbitrator to find for the nursing home in hopes of getting more cases to work on and earn more fees.
  • Proceedings are confidential, unlike trials, so there is no fear by the nursing home of any bad publicity.
  • It may be the arbitrator, not a judge, who decides whether or not the claim should go to arbitration.

Given how common these clauses have become it may be difficult to find a nursing home for a loved one that will consent to a contract without this type of language. If you or a loved one need to quickly find an open space in a nursing home, there may be little or no time to “shop around” and find a nursing home that will allow legal claims to go to court.

If you or a loved one have a potential legal claim against a nursing home because of injuries suffered due to neglect or abuse, whether you signed a contract with an arbitration clause or not, you still may be able to get your day in court. Call the Chicago, Waukegan and McHenry personal injury attorneys at Ryan, Ryan & Viglione at (847) 416-1989 for a consultation today. We handle all types of nursing home negligence cases.

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