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Nursing Home Law Update: Victims of Nursing Home Abuse in New York May Have More Options

On Behalf of | Nov 23, 2015 | Firm News

When a loved one is placed in a nursing home, families may be asked to sign quite a bit of paperwork. Yet, families may be unknowingly signing away important rights as part of this process. According to a Harvard Law blog, many nursing homes require families or residents to sign arbitration clauses. Families who sign arbitration clauses surrender the right to take the nursing home to court if their loved one is injured or hurt due to negligent actions on the part of the nursing facility. Instead, victims’ families must use “private arbiters” who often charge exorbitant fees in order to preside over a case.

For families whose loved ones have been injured, these arbitration clauses could result in a love one receiving less money for their pain and suffering, medical expenses or funeral costs than they otherwise would have, because much more of their recovery goes to paying the arbiter. An even more chilling effect would if the costs of arbitration outweighed pursuing an otherwise meritorious claim, it now being too expensive to do so in comparison to the damages suffered and the potential recovery.

Arbitration agreements protect the nursing home from the negative publicity that a public civil dispute could produce; settlements are not on the public record and therefore can protect a nursing home’s reputation. However, these agreements come at a big price. Victims lose recovery money that they could have put to use for their loved one’s ongoing care or burial expenses. According to National Public Radio, the federal government is in the process of increasing protections so that families will be better informed, especially when they are asked to sign away important rights.

According to the Harvard Law blog, however, in some cases, families may have a right to take a nursing home to court even if a loved one in a facility signed an arbitration clause. Under the precedent of a decision made in Oklahoma, the family member of a victim of nursing home abuse or neglect may be able to sue the home if he or she can distinguish his or her claim from that of the victim. For example, a husband’s claim of loss of consortium with his wife may not be protected by an arbitration clause because the loss of consortium claim is distinct from any claim his wife may have a right to make. Because the wife who signed the arbitration clause would not be able to make this claim, and because the husband is not bound by the clause, the case may be brought to civil court.

Nursing home neglect involving arbitration clauses can get complex.

Even if a case must go to arbitration, this should not be a bar against seeking compensation from a nursing home. Victims and their families still have the right to a fair hearing under these arrangements.

It may be beneficial to speak to a New York City nursing home neglect lawyer if you or a loved one was injured in a nursing home where an arbitration clause was signed. A lawyer can determine whether aspects of the case can be heard in civil court, thus protecting important legal rights.