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Nursing Home Arbitration Provisions

BY Adam L. Appel, Andrew W.Countryman
May 28, 2013

Lawsuits against nursing homes have proven to be some of the more difficult and unpredictable cases to try. While the perception is that such cases should yield lower verdicts due to the age of the patient or because their condition at the time of the injury included chronic illness and/or life-altering “comorbid” conditions that prevented independent living, juries continue to return staggering verdicts for millions of dollars. These verdicts, representing either “the full value of the life of the decedent” or the pain and suffering of the patients, are often driven by allegations of poor bed sore care and related infections. Family members often paint a gruesome picture with vivid photographs of a progressing bed sore.'

Verdicts are often affected by emotional testimony, designed to elicit sympathy from the jurors. In an effort to stem the tide of sizeable jury verdicts, nursing homes and other facilities across the country have been offering arbitration as an alternative in admission documents. By so doing, they seek to avoid the unpredictability that comes with 12 men and women in the jury box, who bring their personal opinions, experiences and biases against the industry.

However, state court judges frequently circumvent arbitration provisions by declaring them unconscionable, against public policy, or in violation of state contract law. Likewise, many states, including Georgia, California, Illinois, New Jersey, New York, Oklahoma and West Virginia, have enacted statutes that undermine the arbitration effort by protecting the traditional right of nursing home residents to a jury trial.

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