Placing your loved one in a nursing home is not an enviable task. Nursing homes are notorious for their poor, substandard care of their patients, and handing your family member over to inattentive caretakers is disconcerting, at best. Nursing homes know their reputation in the public eye; they know that decades of poor care has resulted in mistrust and skepticism. This view has spilled over into the courtrooms, where jurors have routinely held nursing homes accountable for the deaths and/or mistreatment of patients to the tune of millions of dollars for each grieving family member.
One way to fix this problem would be to overhaul the entire nursing home industry to focus on patient safety. That would result in patients receiving the appropriate care and family members being content with the decision to place their loved one in the home. It would also result in fewer nursing home abuse and neglect lawsuits, which would, in turn, save the nursing homes money.
This obvious solution, however, is not the road that the nursing homes have chosen to take. Instead, they have attempted to avoid the jury system altogether by requiring patients to sign binding arbitration agreements. These contracts prohibit patients or the family members from receiving a jury trial in the event of a lawsuit. By avoiding the threat of jurors holding them accountable, nursing homes can rest easy knowing that they will instead be judged by one (or three) attorneys. Why is this better? Arbitration is notorious for producing lower monetary awards and more defense verdicts. It is thus no surprise that many industries, such as cruise lines, rental cars, and even some airlines require arbitration.
If the practice of forced arbitration is so common, why are lawmakers turning sour on the idea of nursing homes requiring their patients to sign away their rights to a jury trial? Simply put, nursing home patients are vulnerable adults. Arizona (and most other states) have specific laws in place to protect such individuals. Many need immediate care, many do not have their full faculties available, and many are in a position where they cannot afford the time or expense to find another nursing home that does not levy such strict requirements. In the legal field, we call these types of agreements “contracts of adhesion.” The individual does not HAVE to sign it, but he or she really has no other choice. Thankfully, lawmakers have caught on to the practice and have started the process of banning forced arbitration agreements.
What is the nursing home industry’s response to these proposed changes? They are against them. Rather than fix the problem, The American Healthcare Association instead points the finger at other healthcare industries saying, “but they do it, too!” This is not a finger-pointing issue, it is a matter of fairness and patient safety. If nursing homes know they will most likely not be subjected to higher verdicts, they have no incentive to correct their flawed system. Dying patients and severely injured patients become just a cost of doing business. Is that the environment we want our family members subjected to?