Another form of alleged abuse that has been lurking amongst nursing homes and elder care facilities is mandatory pre-suit arbitration clauses hidden in nursing home admission paperwork. The so-called “arbitration agreement” is a common practice of nursing homes in an attempt to escape accountability. Families of incoming residents are asked to sign waivers that hold any and all disputes over elder care neglect or a nursing home injury are to be decided by arbitration, and not the courts. Lately, the courts have been ruling that such agreements are unconscionable, in that they tend to be one-sided and violate public policy. When you waive your right to a jury trial, do you really understand what you’re giving up? And if you don’t fully understand or comprehend what you’re agreeing to, how much weight can be put on the agreement in the first place?
In Hendricks v. Manor Care, Berks County Court of Common Pleas Judge Jeffrey Sprecher found that some of the provisions in the arbitration agreement at issue in the case were “misleading,” while others were “overreaching.” “There is no evidence that this plaintiff realized what she was giving up by waiving a jury trial or even a court proceeding,” Judge Sprecher said, in his opinion released October 3. “This plaintiff is not an attorney or a businessperson experienced in the law. This court cannot conclude that plaintiff understood her rights. Therefore, this court concluded that plaintiff lacked informed consent when she agreed to waive the resolution of all future disputes in a court of law in favor of private arbitration.”
“Arbitration may be fine for monetary issues in business transactions, but injuries caused intentionally or negligently in tort should not be the subject of routine arbitration unless both parties fully and completely negotiated and agreed to the final terms,” Sprecher wrote. “Unlike contracts where the issues are relatively clear and a breach can be easily identified, negligence issues are not so obvious.”
Sprecher also noted that Hendricks was asked to sign the arbitration agreement at an emotionally trying time and did not fully understand what she was agreeing to. There was no provision for negotiation in the agreement, which had to be signed as is. Judge Sprecher held that the agreement was “procedurally unconscionable.”
In November 2011, a five-member majority of the Florida Supreme Court rejected key aspects of an arbitration agreement signed by the family of a resident with Manor Care Florida Inc. The lawsuit, Gessa vs. Manor Care of Florida Inc., involved the same elder care company that was involved in the Pennsylvania case.
Yet another case in New Mexico also found for the plaintiff. The son of a resident who died just a few months after admission filed a wrongful death lawsuit on behalf of his deceased parent. The defendant immediately moved to compel arbitration. The trial court in Figueroa v. THI of New Mexico at Casa Arena Blanca LLC,denied the motion on grounds that the agreement was one-sided and unconscionable, citing the Supreme Court’s decision in Cordova v. World Finance Corporation of New Mexico, 2009-NMSC-021, 146 N.M. 256, 208 P.3d 901, which held that arbitration agreements that are unfairly and unreasonably one-sided in the drafter’s favor are unconscionable under state law.