No family wants to reach the point where they feel compelled to move their loved one into a nursing home, but many Charleston residents find themselves in a place where they feel like they have no other option but to do so.
Just like any other tenant, nursing home residents themselves, or their power of attorney, must sign a contract before moving in. There is often a unique clause outlined in the terms and conditions of that assisted living facility contractual agreement, which is an arbitration one.
Generally, nursing home arbitration agreements would, in essence, be a signing away of your or your resident loved one’s right to pursue civil litigation against the nursing home if a situation necessitated you doing so. Below, we discuss some of the reasons this is a bad thing and let you know what options you may have if you feel the need to take legal action but are already entangled in a legal agreement like this.
Most of the Nursing Home Arbitration Agreements Are Pre-Dispute Ones
When it comes to arbitration agreements contained in nursing home contracts, they’re generally pre-dispute ones. What’s the significance of this? The biggest danger associated with this is that you lose the choice to file a civil lawsuit and pursue litigation. You’re forced to negotiate—often with a party selected by the nursing home.
There are many downsides associated with pre-dispute forced arbitration, one of which is that it takes away residents’ freedom to choose how they want to resolve the conflict. This is often why some say these agreements prey upon vulnerable populations.
Some other notable reasons arbitration is not ideal is that it:
- Affects how much responsibility the facility or its employees assume for what occurred.
- Allows “wrongs” nursing homes and their staff engage in to go swept under the carpet.
- Limits how much compensation those harmed are able to recover.
In the case of the bullet points above, these are often factors because arbitration negotiations tend to happen in private, behind closed doors. When nursing homes feel that they don’t have to worry about you making potentially disparaging remarks in public about them, perhaps because your arbitration agreement prohibits you from doing so, they don’t feel as inclined to readily admit fault or pay you “hush money” to keep their reputation intact (so they can continue to recruit new residents to victimize with their tactics).
What Qualifies as a Dispute Under Most Nursing Home Arbitration Agreements?
Those “disputes” that you may have to agree not to pursue litigation for in the arbitration agreement may include any signs of nursing home abuse or neglect, such as the following:
- Dehydration and malnutrition
- The acquisition of communicable diseases, whether due to ineffective personal or facility hygiene, the facility’s systems being poorly maintained, or environmental factors
- Holding caregivers accountable for providing the wrong dosage or altogether the incorrect prescription drug to their wards
- Physical injuries that stem from caregiver neglect or abuse, such as bone fractures
- Sexual assaults and the residual physical or mental impact they may have on the victim
- The emergence of pressure ulcers or bed sores from not regularly shifting the positioning of residents with limited mobility
It’s important to note the pre-dispute arbitration agreements also often prohibit those who sign such contracts from taking legal action aside from sitting at a negotiation table with those parties who they allege wronged them and attempting to broker a settlement.
What To Do if You’re Bound to a Nursing Home Arbitration Agreement in West Virginia
If you’re simply at the fact-finding stage as you are considering entering a nursing home or placing your loved one in such a facility in Charleston or elsewhere in West Virginia, then know and spread the word with your peers that it’s not mandatory to sign an arbitration agreement to become a resident in such a place. However, that piece of insight doesn’t help if you’ve already signed on the dotted line—except in some cases.
Should you find yourself in the unfortunate predicament where you or your loved one is one of what the National Council on Aging estimates to be 5 million older Americans who find themselves subjected to elder abuse annually in the U.S., there is hope. It’s important to know that, like most contracts, there is a certain time frame within which you can rescind such an arbitration agreement if you signed one.
Our DiPiero Simmons McGinley & Bastress, PLLC team can read over any agreement you’ve signed to identify whether it contains such an arbitration clause and, if so, whether you are within the statutory time frame to pull out of it. And if we deem you capable of doing so, we can go over the best steps for moving forward.
Also, if you’re fortunate enough not to be tied to such an arbitration agreement but yet are wondering what legal remedies if any, you should pursue if you or your relative suffered nursing home abuse or neglect, we can let you know. Sitting down for a free case evaluation with our legal team in our Charleston office is free, so schedule a consultation right away.