On its surface, the idea of using arbitration to resolve a dispute may seem like a good idea. On one side is a corporation that owns a chain of skilled nursing facilities or nursing homes, and on the other side is you and your family with a problem. You believe that your relative or loved one was mistreated in the care of a nursing home – they may have suffered a serious injury or even have died from abuse or neglect. You also believe that the facility has liability and that they should compensate your family for the pain, suffering, and loss.
In the middle is a private arbitrator. According to the rules of arbitration, you don’t need to go to court, you don’t have a lengthy period of discovery and depositions, and you don’t get to appeal the decision. The arbitrator, who is usually a retired judge or a very senior attorney, will make a final decision and settle the case.
What’s wrong with that?
What’s wrong with arbitration is that the system is not a level playing field. Here are some of the problems families face when they go to arbitration instead of a jury trial:
*An arbitrator is less likely to award punitive damages. That means that in egregious cases of neglect or abuse, the amount an institution will pay will be limited.
*The arbitrator has an incentive to find in favor of the corporation, not the individual. Why? Because the corporation represents a potential repeat customer for the arbitratorwhile the individual is for sure a one-time customer. If a corporation likes the way an arbitrator handles their case, they’ll want to use that arbitrator over and over.Think about it – repeat clients are good business for arbitrators.
*The arbitration process is generally confidential, which means that cases are never publicly reported. If a nursing home chain is repeatedly going to arbitration, there’s no way for other families to know that. Once an arbitration ruling for claims of elder neglect or abuse is final, the proceedings are sealed and there’s no way for a third party to determine whether the arbitration itself was conducted fairly. Secrecy is never good for families who want to know a facility’s history.
For these and a whole host of other reasons, I strongly recommend that my clients never go to arbitration. Yes, it’s possible for someone to win a major judgment in arbitration, but the chances of that happening are slim and an arbitration award is statistically significantly less than a jury trial.
Here’s the problem. When you or your loved one were admitted to a nursing home or skilled nursing facility, you were probably given a stack of papers to sign. I’ve seen some cases where clients had to sign 100 pages! The admitting staff will just say, “Sign here, sign here, sign here…” With that many documents, there’s no time to know what you’re signing.
I can assure you that somewhere buried in that stack of papers is an arbitration clause agreement which states that in the event of any dispute, the person signing gives up the right to a jury trial and gives up their right to sue in a court of law. Instead, they are agreeing to go to binding arbitration, and in many cases, the agreement will even state the name of the arbitrator they will be required to use!
Compulsory arbitration is good for corporations but it is unequivocally bad for individuals.
If you signed an arbitration clause, all is not necessarily lost. In my next video, I will explain to you the steps you need to get out from under arbitration and make sure you and your family can use the court system to protect your rights.
If you have concerns about a loved one in a care facility, please give us a call at York Law Firm (916) 643-2200.