Why nursing home residents can’t get a fair trial

Many elderly people entering nursing homes are forced to sign away their right to take legal action against a negligent nursing home or care provider.

Binding arbitration agreements are often stuck in the paperwork that admits new nursing home residents. One survey by a nursing home trade association found that nearly 70% of residents in their facilities had signed arbitration agreements.

This means that any future legal claims a patient or their family might have against the nursing home – for abuse, neglect or even wrongful death – will never be heard by a judge or jury. Unlike cases filed in court, arbitration proceedings are almost all private: there is no public record of the process.

And who selects the “neutral” arbitrator? Usually, the nursing homes and their lawyers do. It’s in their best interest to choose arbitrators who consistently side with them, or at least to keep the amount of damages paid to egregiously injured elderly patient as minimal as possible.

“An  American Health Care Association study reviewed more than 1,500 disputes between consumers and nursing homes, and the results showed that the disputes subject to arbitration paid consumers awards that were, on average, 35% lower than those not subject to arbitration”  – Eleanor Laise, Associate Editor, Kiplinger’s Retirement Report

Despite unfair and unconstitutional binding arbitration clauses, every nursing home resident has the following rights:

  • all of the rights of citizenship the person has in the United States;
  • the right to be fully informed — by word and in writing — of the policies and procedures that protect all of their rights
  • the right not to sign any contract or agreement that claims the person agrees to give up any of these rights.

Read the full statement of nursing home resident rights at the Oregon State Bar’s website.

Learn more about problems in nursing homes