Florida law provides nursing home patients numerous rights. Within these rights lies the common theme of protecting the health and well-being of the residents, their right to make decisions about medications and other aspects of their health care, and to have continued relationships with family members.
When a nursing home withholds needed medical care, nutrition, contact with families or allows its staff to mistreat your family members, you rightly seek help from a nursing home abuse attorney to hold the nursing home legally responsible.
In your pursuit for justice, the nursing home or its lawyers may claim that you cannot seek compensation for nursing home abuse in a judicial proceeding because of an arbitration agreement.
The arbitration agreement does not waive the rights of you or your loved ones to be free from nursing home abuse. However, arbitration can affect the way you get compensation for nursing home abuse and perhaps the amount you or the family member can expect.
Before you agree to have disputes arbitrated rather than handled through the court, keep in mind the important rights you might sacrifice. If you have entered into one, learn how a lawyer can undo these impacts on how you pursue compensation for violation of these rights.
You Lose the Right to a Jury Trial By Going to Arbitration
As an alternative to the court system, arbitration denies you many of the tools nursing home lawyers can otherwise employ to advance your case.
Chiefly, you have no jury trial. That means, rather than six citizens deciding whether to hold the nursing home accountable, the fate of your case rests in one person. Chances are that the arbitrator has never had a loved one in a nursing home or been victimized by the carelessness or neglect of others.
In arbitration, you lose the perspective of your peers who might better understand the pain, suffering, mental anguish, and other damages that may not be measured in economic terms. Arbitrators may tend to limit any awards to medical bills and shun non-economic damages.
Further, the arbitrator may have — either consciously or unconsciously — an affinity for nursing homes. These entities often select arbitrators who have been in the nursing home industry. Arbitrators may hold a conservative bent in the direction of nursing homes so that they will be continuously selected to hear disputes.
Arbitration Limits Discovery Methods
A nursing home abuse attorney can more readily get helpful information through a lawsuit rather than arbitration. Florida’s civil procedural rules specifically permit devices such as interrogatories (written questions), requests for production of documents and depositions to obtain and put on the record what happened to your loved one, the actions or omissions of the nursing home, and conditions that may have contributed to it.
The interrogatories and documents requested may include inspection records, notices of violations or corrective actions to take, records of treatments or services rendered to residents, and incident reports. In taking a deposition, we place witnesses, nursing home administrators, and others under oath to answer questions about matters relevant to the injuries. Depositions serve both discovery purposes and preserving the testimony of those who might be unavailable for a trial. These tools are, at best, limited in an arbitration proceeding.
Arbitration Proceedings Are Not Public Events
In some cases, the public nature of a civil lawsuit and trial may afford you or your loved ones bargaining power to encourage a favorable settlement. Trials expose the abusive or negligent practices of nursing homes to jurors, reporters covering the proceedings, and the general public. To avoid negative press, the nursing homes might agree to larger amounts of compensation for nursing home abuse that you might allege than in arbitration. Hearings before an arbitrator occur in private, beyond the reach of cameras, and without spectators. With the privacy goes a significant amount of incentive for nursing homes to settle.
You Have Very Few Grounds to Challenge an Arbitration Ruling
When you submit your nursing home abuse claim to arbitration, the decision of the arbitrator is generally final. You have very few reasons to overturn the arbitrator’s decision if it does not go your way.
Generally, you must show the arbitrator did not fairly conduct the proceeding. Hallmarks of an improper arbitration hearing involve a disregard of the law or evidence or refusing certain evidence or witnesses without any reason.
Arbitrators can make mistakes of law. Normally, a mere misinterpretation or application of the law of nursing home abuse, negligence, or even rules of evidence is not enough to overturn an arbitration award. By contrast, appellate courts have the authority and duty to invalidate jury verdicts or court rulings against you based upon the trial court’s refusals to admit evidence, allowing inadmissible evidence, or wrongly applying the law or instructing the jury on the applicable substantive law.
How to Get Out of an Arbitration Agreement
Generally, courts will honor arbitration agreements even in nursing home cases. If you or a loved one signed an agreement for nursing home admission, turn to a nursing home abuse attorney for help in avoiding its effects.
To attack an arbitration agreement, lawyers may look to the authority of the person signing it. In many cases, a family member — a spouse, sibling, or child — may sign the admission papers that include the arbitration provisions. Such persons likely execute the nursing home admission documents understandably to facilitate important care for their loved ones. However, in the absence of a duly executed power of attorney or a guardianship ordered or allowed by the court, those signing the papers lack the proper authority to waive their loved ones’ rights to jury trials or other important rights with respect to the nursing home.
Other grounds to invalidate an arbitration agreement include fraud and duress. Federal law prohibits nursing homes from requiring you to sign an arbitration agreement to gain admission. If a nursing home director or employee tells you otherwise, a court might strike the agreement on the grounds of duress or perhaps fraud.
An arbitration agreement does not excuse nursing homes from responsibility for negligence. Do not let one diminish the compensation for nursing home abuse suffered by your loved one. Contact a lawyer today about your nursing home abuse claim.
