(August 10, 2011)
On June 29th, the West Virginia Supreme Court of Appeals ruled on three separate nursing home cases and held that nursing home residents who were injured or died under care are not subject to mandatory arbitration clauses, as was previously required. It turns out that the clause the nursing homes used to avoid liability was unconscionable and enforceable.
We can probably point the finger at the nursing homes’ legal teams, as they incorporated tricky – and possibly deceitful – language into the written agreements their patients were forced to sign in order to be treated. This language frees any liability on the nursing homes’ end, and by signing these arbitration clauses; those looking to be treated were forced to defer to arbitration if any legal disputes arose.
Although this would not be a problem if both parties had agreed to arbitration (as opposed to having a jury decide on the cases), forcing arbitration when the nursing homes know the person is in a vulnerable situation is wrong. It could be compared to kicking a man when he is down. The problem with arbitration is that once a decision is made, it cannot be appealed and can only be challenged under limited circumstances.
The court happened to agree with the above statement, stating that “people entering a nursing home have to sign admissions contracts in the midst of a crisis, without time to comparison shop or negotiate the best service and price combination. In such an environment, it is common that residents or their family members rarely know that the admission contract contains provisions that go far beyond the medical care and other services the facility promises (or is expected) to provide and that, instead, have serious implications for their legal and constitutional rights.”
Paul T. Farrell Jr., President of the West Virginia Association for Justice, commented on the West Virginia Supreme Court ruling, saying that they “ruled that no small print can take away our constitutional rights.” Nursing homes can no longer point the finger elsewhere and avoid taking blame, which is a step in the right direction for the justice system.
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