When you are admitted into a nursing home – or you admit a loved one – there will be a stack of admission paperwork. Everything from acceptable resident behaviors to visiting hours will probably be outlined in those documents. What you might not expect in the admission paperwork is an arbitration clause or agreement. You could even be instructed to sign an entirely separate document titled “arbitration agreement.”
What exactly is the legal process of arbitration, though? The legalese in the paperwork will not make it clear. And why do so many nursing homes want you to preemptively agree to arbitration?
Arbitration Sidesteps a Constitutional Right
The Sixth Amendment gives you the right to an impartial trial for legal conflicts. Normally, people associate the right to trial as something having to do with criminal defense proceedings, but it applies to civil court processes as well. When you sign an arbitration agreement, it will probably say something along the lines of you giving up your Sixth Amendment right to a jury trial and, if any problems occur between you and the nursing home, you cannot bring a claim against them in civil court.
Instead of using a typical personal injury claim that can escalate to courtroom litigation, you will be contractually obligated to enter arbitration proceedings. During arbitration, there will be a private third-party arbitrator who decides the outcome of your claim. Both sides present their arguments, demands, and expectations, and the arbitrator gets the final say in how to resolve the conflict.
Downsides to Arbitration
At a glance, arbitration can seem like a great deal. No one likes going to court, after all, and forced arbitration eliminates the chances of heading into litigation. However, do not be mistaken. There are serious problems with arbitration that often leave the plaintiff looking at an uphill legal battle.
In arbitration, the discovery process and your ability to investigate evidence held by the defendant become hampered immensely. The paperwork you signed might not even allow you to examine certain pieces of evidence at all if they are labeled as “confidential” or something of the like. The arbitrator may be from a pool of individuals that is more aligned with corporate interests. You may not even be able to choose from a pool of fair and impartial arbitrators. In fact, a recent ruling from the Supreme Court indicated a lack of legal counsel, despite state statute requiring such counsel, when signing a long-term care arbitration agreement will not nullify such an arbitration agreement. If you have any question about whether a contract (most do) includes an arbitration provision, it’s best to consult with an attorney.
Additionally, the arbitration process may be vastly more costly, unpredictable, and difficult because of the constraints placed on the advocating parties. Although you cannot control many elements of forced arbitration, you can at least prepare for the unknown by choosing to work with a trusted local attorney from the beginning of your case.
Do you need an attorney to represent you during arbitration in your nursing home abuse or neglect claim? Call (210) 361-2997 to speak with someone from Maloney Law Group, P.L.L.C. in San Antonio. Your best interests are our focus!
