In our law practice, we have dealt with hundreds of nursing home abuse and neglect cases throughout their state of Florida. In the last decade, nursing homes have become more reluctant to settle cases prior to litigation for two reasons. First, many are now paying settlements from their own operating revenue. Second, as I will discuss later many of the claims now are being forced before private tribunals because many of our clients signed binding arbitration agreements.
Recently, I stumbled on an old Washington Post article that describes the dilemma that is all too common for many of our clients. It tells the story of John Mitchell, whose sons reluctantly placed him in a nursing home in Dennis, Massachusetts. His son Paul signed all the documents hoping that his father would receive all the necessary care for his difficult health condition.
However, a few weeks later, Mitchell has sustained personal injuries due to the neglect of the nursing home staff. While using a lift device they dropped him. They called an ambulance, but canceled it as soon as his vital signs stabilized. Later that night, the staff members noticed that Mitchell was unresponsive. They rushed him to the hospital. The hospital discovered blood had accumulated in his brain due to the earlier fall. Mitchell died a few days later due to the injuries.
Mitchell’s sons were understandably angered and enraged by the staff’s indifference to their father. Of course, their next instinct turned to seeking justice for their father. As soon as the lawyer started gathering evidence to prove their case, they realized, what many nursing home abuse lawyers do now, they signed a mandatory arbitration agreement with the nursing home which made the road to justice a lot harder.
What is Mandatory Arbitration Agreement?
If you sign a mandatory arbitrage agreement, it means that instead of having your case decided by a court and six jurors you have agreed that you and the nursing home will hire private attorneys or retired judges to sit in judgment of the facts of your case. to go through an arbitrage procedure before taking your case to trial. In our practice that usually means both sides try and agree to one arbitrator sitting in the capacity of judge and juror. Alternatively, it may mean each side selects their own arbitrator and the two arbitrators decide on a neutral arbitrator to comprise a three-member panel. That’s not a situation that you want due to several reasons:
Arbitration is expensive. If you go to court, you don’t pay the judge and the jury. But if you go to arbitration, you pay the arbitrator. In one Arbitration alone the panel members charged our firm collectively $20,000.00.
The chances for delay are greater. Any litigation takes time. However, in court when the nursing home attempts to delay your case we can ask the judge to compel the nursing home to cooperate. In the more egregious situations, the court may award financial penalties against the nursing home. In arbitration, it often takes longer to schedule a hearing with three-panel members. Often they are reluctant to penalize nursing homes for fear of losing their business to arbitrate future disputes
Compensation could be smaller. According to the statistics in the same article, nearly 30% of all mandatory nursing home arbitrations failed to award money damages. Juries on the other hand only failed to award damages in 19% of the cases. In addition, compensation amounts in arbitrations are typically smaller compared to those awarded after a trial.
What’s the Solution?
The most simple and straightforward solution is not to sign the mandatory arbitration agreement. It is illegal in Florida to condition your loved one’s admission to the nursing home based on them signing away their right to a jury trial. It is not obligatory to sign it.
Also, there is a possibility to opt-out of the agreement. If you signed it and now regret, you have a certain period to opt-out of it. The Florida consumer protection statutes usually allow 3 days to cancel any consumer contract including the arbitration provision.
We have also successfully challenged these agreements in court. However, with the growing preference for arbitration Florida courts are increasingly more likely to refer the case to arbitration if a valid agreement exists.
While arbitration is never the preferred route towards justice Florida courts have ensured that all the same damages you could recover in court are guaranteed in arbitration. Due to these protections, we have successfully resolved many nursing home arbitration cases providing families with some measure of closure. If you or a loved one have questions regarding possible nursing home abuse or neglect please call our nursing home abuse attorneys at 407-612-6464.