Unconscionability in Nursing Home Clauses for Mandatory Arbitration
Written By Las Vegas based Law Clerk: Robert Maxey (Las Vegas, Nevada)
The Federal Arbitration Act (FAA) was passed in 1925 and it allowed for disputes to be settled through arbitration instead of the court. Once in arbitration, decisions are made by either an arbitrator or an arbitration panel, and are legally binding. The FAA is a preemptive law that will take precedent if state laws do not support arbitration. This is true in many cases in Nevada and around the United States.
After an arbitrator has determined an award, it will need to be confirmed by the court. The FAA also assures that arbitration should be equally as fair as using the court system. Entities who participate in arbitration give up their right to an appeal. The FAA only allows for arbitration to be invalidated upon confirmed claims of duress or unconscionability.
Arbitration offers an additional legal remedy to resolve disputes, and can be helpful. However, the Supreme Court of Appeals of West Virginia has recently ruled, citing unconscionability, against clauses in nursing home contracts, requiring mandatory arbitration, in cases of injury or wrongful death.
Several families had filed lawsuits alleging loved ones had died of negligence at the fault of nursing homes. The nursing homes, however, had binding arbitration clauses written into the contracts of those who were admitted as residents. When a lawsuit would arise with claims against the nursing home, the nursing home would force the plaintiff into arbitration. In these cases, arbitration was seen by some, as unfairly beneficial to nursing homes, because it limited damages plaintiffs could receive.
The court goes on to further explain itself and the reasons to its decisions. The court explains the situation that people come to sign contracts admitting their loved ones, as full of duress. They state that individuals lack the time to "comparison shop." It is under these circumstances that the court points out, families often have no idea that they are signing a contract that "go[es] far beyond the medical care and ... instead, have serious implications for their legal and constitutional rights"
The court's ruling has had a tremendous impact in the justice system for elderly abuse. Families, who may have been tricked into an unfair and unjust contract, protecting neglectful nursing homes, can now fight back.
As an alternative view, some Las Vegas lawyers do not challenge arbitration clauses. Many jury verdicts from trials in Clark County in recent years have demonstrated that juries tend to give medical providers the benefit of the doubt. In some cases, outright jury nullification has taken place according to some attorneys. In other words, even if there is a belief by the juries that a doctor or nurse did something wrong, the juries still find in their favor because certain people believe that doctors should be exempt from lawsuits. Other people feel differently. Sometimes arbitration might be the way to go. Every case is different.
Full information the story can be found here: West Virginia Supreme Court Rules Against Arbitration
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