As much as we’d like to think it doesn’t happen, there have been numerous reports of our elderly loved ones suffering abuse at the hands of nursing homes. Even those nursing homes with the best reputations are going to run into an employee who commits some form of abuse or neglect at one time or another.
Unfortunately, this problem is exacerbated because many nursing homes are attempting to shield themselves from liability for abuse or negligence by including forced arbitration clauses in their admissions agreements. Why is going to arbitration to resolve an issue such a negative these days?
In a nutshell, it restricts the rights of a nursing home patient when they have a problem with the facility. Should the patient, or their family believe a nursing home is negligent, they cannot take the nursing home to court.
This is especially a problem in a state like New York, where City & State pointed out a recent investigation that found private arbitrators in the area usually favored repeat customers. In this case, these repeat customers are the very nursing homes that have been alleged to have committed or allowed the abuse.
The kicker, when it comes to New York and some other states, is they have laws in place that are supposed to make it illegal to put forced arbitration clauses into residential agreements. Unfortunately, although New York’s law states these arbitration clauses are against public policy, a recent appellate decision held that New York courts are bound by the Federal Arbitration Act which allows these unjust forced arbitration clauses. Richard Abend was recently quoted in an article stating if the decision is upheld, “it will result in the denial of justice to nursing home residents that have been the victims of negligence” and will remove “a powerful incentive” for nursing homes to provide quality nursing care.
What does all this mean to you? The fight is still ongoing, and there is hope forced arbitration clauses in nursing home admissions agreements will eventually be found unlawful in New York like our legislators wisely intended when New York’s Public Health Law was enacted.
The lawyers at Abend & Silber are currently working on such a case and we are fighting to maintain the right to a jury trial for injured New Yorkers. If you feel a loved one is suffering from abuse or negligence at a nursing home, contact us to find out your options.