A recent decision of the Illinois Appellate Court has upheld the enforceability of an arbitration clause in a nursing home admissions contract. Incoming nursing home residents and their families should expect to be presented with contracts containing these agreements going forward, and current residents and their families may be confronted by nursing home staff members requesting that they sign an amendment to the existing nursing home contract. This is bad for holding nursing homes accountable for poor care that leads to falls, bed sores, and other preventable injuries to nursing home residents.Until this decision, the law in Illinois had been that these kinds of “agreements” were not enforceable and could not be used to curtail the rights of a nursing home resident to seek justice for abuse and neglect under the Nursing Home Care Act. However, the decision from the Appellate Court was that the Federal Arbitration Act preempted the provisions of the Illinois Nursing Home Care Act which made them unenforceable. Nursing home residents and their lawyers in other states have devoted many hours and huge amounts of resources to avoid being forced to arbitrate personal injury and wrongful death lawsuits for injuries resulting from poor nursing home care.What is arbitration and why should nursing home residents and their families want to avoid it?Essentially arbitration is a system of resolving disputes outside the court system, using a neutral decision maker known as an arbitrator. In many ways, the arbitrator takes on the function of a judge and jury. To most people, that sounds like a pretty reasonable way to resolve things — and after all, no one really wants to go to court and for the most part, trust and rely on the nursing home to care for their parents, spouse, or other loved ones properly.From the persepctive of the family of a nursing home resident trying to recover for injuries such as from falls, bed sores, or other forms of nursing home abuse and neglect, there are lots of reasons why arbitration is a poor substitute for the civil justice system. Here are a few:
- The cost of initiating the case and actually prosecuting the case is much higher in an arbitration setting, as you must pay the arbitrator fees for the work he does on the case, plus adminstrative fees to the company that organizes the arbitrations, without corresponding reductions in the cost of prosecuting the case;
- The rules for pretrial discovery are more favorable to the nursing home in that a legitimate ground for refusing to participate in discovery is that the discovery sought is not “unduly burdensome or expensive” — this sounds like a reasonable limitation, but in the hands of aggressive defense lawyers, it means that every request will be greeted with a costly hearing before the arbitrator. No such limitation exists in the court system;
- When doing pre-trial questioning of a witness known as a deposition, you must advise the nursing home of the scope of the deposition. This gives the nursing home ample opportunity to prepare the witness on how to testify favorably to the nursing home and unfavorably to you. No such requirement exists in the court system.
There is little if any benefit to arbitration from the perspective of a family admitting a loved one to a nursing home and hoping that he or she will not suffer from bed sores, falls, or other types of nursing home abuse and neglect.Please watch this web site for additional information about this important development in the law.