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I reviewed my Mother-in-law’s nursing home admitting agreement for my wife and, as an attorney, immediately spotted an arbitration clause. The agreement allowed us to opt out which I had my wife do. This was in Pennsylvania and the opt out may have been required by state law. As a litigator I knew a case is substantially lost before getting started if there is an enforceable arbitration agreement, especially in an area as complicated as nursing home negligence.

For starters, arbitration generally lets the defendant organization play an outsized role in picking the arbitrator. Arbitrators are generally picked from a list. Arbitrators often make a significant portion of their income this way. Arbitrators who develop a record of finding against an industry don’t get picked by defendants in that industry. The deck is stacked when the other side gets to pick a judge who is beholden to them.

An arbitration clause may make it impossible to get an attorney to represent you. Because arbitration awards are usually a lot lower than court judgments, there just isn’t enough of a potential pay-out to finance a lawsuit. For example in a case like nursing home negligence, you need to hire experts, probably a nurse with nursing home experience and a doctor, maybe a someone with experience in nursing home administration. Additionally court reporter fees to record depositions of nursing home staff will be incurred. This is expensive, not to mention the attorney needs to pay himself and cover the expense of his staff and other overhead.

In arbitration, expect to find yourself arguing against all the expertise of the nursing home staff and experts, with little clue what is being said. So read what you sign. If there is no opt-out provision, try to get them to agree to a contract change. This doesn’t mean every case has to go to trial. In fact most cases are settled. But an arbitration clause takes away most of your leverage if a dispute arises.

Of course exercising due diligence to assure yourself the facility provides good care is a lot more important than having recourse after bad care has been give. And if you are convinced the place gives good care, whether to sign an arbitration clause may not be a deciding factor on going through with the placement.

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