I recently had a scheduling conference in a case where we had been fighting the issue of binding arbitration. What is arbitration? You may have heard of arbitration in the context of credit card companies or hotels. You may even had heard of it in the context of nursing home cases.
What is arbitration?
Arbitration is an alternative to litigation. This means that arbitration is a private way to resolve disputes. Two people can hire a third party or multiple third parties to serve as arbitrators. They can then present their dispute to those arbitrators and ask those arbitrators to make a decision. They can agree that the arbitrators’ decision is binding on them. Arbitration can be a way to resolve disputes. Sometimes arbitration can be advantageous. I have represented attorneys in the past who chose to arbitrate a dispute between them to keep that dispute private. Arbitrations can be confidential whereas litigation is typically public. The courts are open. People can attend jury trials. Things filed in court are usually matters of public record and therefore not private.
Why does The Dickson Firm consistently oppose involuntary, binding arbitration in our nursing home cases?
Typically, the nursing homes try and force families to submit a dispute to binding arbitration. Why do they do that? The first reason they do that is because they are the defendant in the case. In a nursing home case, The Dickson Firm represents the Plaintiff, or the individual, or the family who is pursuing the case against the owners and the operators of the nursing home. As the Plaintiff, we have the burden of proof. We have the burden to prove our case. Therefore, we must collect evidence to prove our case. We must obtain documents. We must take depositions We must obtain witness testimony to prove our case. In every single one of our nursing home cases, we need the help of the Trial Court and sometimes the help of the Court of Appeals. We often have to issue subpoenas to obtain records and to conduct depositions. We often have to file Motions to Compel and even Motions to Show Cause asking the Trial Court to hold certain parties in contempt for refusing to produce discoverable information. If a case is referred to arbitration, we are in front of private arbitrators who have little authority to order someone to appear for a deposition or to order a company to produce documents. A judge has the power to hold people in contempt. I've even had cases where a judge has sent the bailiff out to pick up a witness and arrest them because they refused to comply with a subpoena.
The second reason that we fight arbitration is that the nursing home industry has done research, and has determined that arbitration awards are typically smaller than jury verdicts for the same case. Therefore, the nursing homes know that they have less exposure if the case is forced to arbitration.
Therefore, we consistently fight the efforts of the nursing homes to force our cases to involuntary, binding arbitration.
When I first started handling nursing home cases, and I first started fighting these arbitration clauses, there was very little case law out there. When a Court of Appeals makes a decision, that decision becomes authority. If you are in the same jurisdiction as that Court of Appeals then that authority is binding, meaning that the trial court has to follow that decision. If you are in another jurisdiction then that authority is at least persuasive. And there were very few Court of Appeals decisions regarding arbitration. I am very proud that over the years I have argued multiple cases involving issues with respect to arbitration to various Courts of Appeals throughout the State of Ohio, and I have obtained multiple decisions from multiple Courts of Appeals relative to nursing home arbitration. I am the only Plaintiff’s lawyer to have ever argued this issue before the Ohio Supreme Court. In addition to the various Courts of Appeals decisions that we use to fight these clauses, we also have an Ohio Supreme Court decision which I argued.
Therefore, if you are admitting someone you love into a nursing home, read the admission materials very carefully. Usually the nursing home tries to hide the arbitration clause in the admission agreement. There are often multiple pages of the admission agreement involving multiple topics and often buried near the back is an arbitration clause or an alternative dispute resolution clause. Read these clauses very carefully. Do not sign them. If a nursing home tells you that you have to sign an arbitration clause in order to get your loved one admitted to the nursing home, make sure you document that clearly. If the nursing home forces you to sign the arbitration clause in exchange for admitting your loved one into a nursing home then it is not enforceable.
If someone you love has been neglected or abused in a nursing home, please call us at 1-800-OHIO-LAW as we would be happy to talk with you and help you in any way that we can.