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Kristina Labanauskas
Kristina Labanauskas
Contributor •

Attention New Nursing Home Residents: Put Down That Pen

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When you enter a nursing home, you expect that you are in good hands and will be afforded the best possible health care. Unfortunately, this is not always the case. Disputes arise due to nursing home negligence, which can result in injuries, falls, painful bedsores, infections, and even death.

How you would want to proceed with a lawsuit in the event of a dispute is likely to be the furthest thing from your mind when you enter a nursing home, but today many nursing homes are requiring residents to make the critical decision of where and how a lawsuit will proceed in the event of a dispute upon the resident’s entry into the home. This is being done through binding arbitration agreements.

By signing a binding arbitration agreement, you lose significant rights. Essentially, you waive your right to sue the nursing home in court and to have your case heard by a jury. Instead, if a dispute arises, your case will go through an arbitration process. And, although arbitration might be faster and more cost effective, arbitrators are less likely to award the sort of punitive damages that a jury might award.

These binding arbitration agreements have become increasingly common among nursing homes. This is likely a result of: (1) lawsuits that drove nursing homes out of some states in the late 1990s and early 2000s; and (2) the belief by those in the industry that jury trials put nursing homes at a legal disadvantage. A Senate panel is currently investigating the increased use of binding arbitration.

Lawmakers and advocacy groups are concerned about the timing of making such a decision, as entry to a nursing home is most likely not the best time to decide where and how a dispute will be resolved. Even more troubling is the fact that many nursing home residents do not have the capacity to make minor, let alone significant, decisions.

Federal lawmakers have filed bills to make the arbitration agreements unenforceable, and such groups as AARP and the Alzheimer’s Association support the legislation. They argue the better option is to make a decision after a dispute occurs rather than upon entering the home.

Nursing homes, however, maintani that arbitration is voluntarily agreed to, not a condition for admission, and is quicker and fairer than court.

In Illinois, these agreements are illegal and unenforceable. The Illinois Nursing Home Act provides that the right to bring a claim and the right to a jury trial cannot be waived. But not all states provide that same protection.

So, while waiting on the outcome of the proposed legislation, do your part by reading carefully everything you sign and, as difficult as it may be, contemplating how you would want to proceed with a lawsuit in the event something goes wrong. If you have any questions, do not sign the binding arbitration agreement. Hopefully you will be afforded the care you expect and deserve, and you will not need to proceed with a lawsuit. If a dispute arises, however, you will be in a stronger legal position if you keep your options open by not signing a binding arbitration clause upon entry. By not limiting your dispute resolution options, you will be a better position to evaluate the potential consequences of arbitration vs. court after consultation with a licensed attorney.