What to do if the Nursing Home tries to force you to involuntary, binding arbitration.

Recently, there was a story in the news involving a decision by a court in New Jersey enforcing an arbitration agreement. A couple was involved in an automobile collision when they were passengers in an Uber. Their driver ran a stop sign and caused a collision. They sued Uber as a result. However, after they filed the lawsuit, Uber claimed that they had agreed to binding arbitration. As it turned out, their 12-year-old daughter had clicked on a link in their Uber account when she was ordering food. The New Jersey Court held that, because the couple had agreed to prior versions of the user agreement, the 12-year-old daughter clicking on the app was binding and they were not able to sue the company, but instead were forced to go to involuntary, binding arbitration.

There are a variety of problems with this decision. First and foremost, a 12 year old, being a minor, does not have the authority to contract. She had no authority to enter into a contract that would bind her parents. These long boilerplate user agreements, written in tiny type, are rarely read by anybody. Further, to the extent that you have to click on "accept" in order to use the service, then the agreement is not voluntary.

The fiction created in this situation is that the two parties voluntarily entered into a contract to arbitrate any disputes if they arose later. Who would agree to that? Imagine if Uber actually proposed that to their clients.

"If our driver hurts you by crashing his or her vehicle, even if they are drunk or reckless, you agree not to sue us in Court where you might recover full damages. Instead, you agree to incur the expense of arbitration. You agree to waive your constitutional right to a jury trial. You agree to give up the power of the Court to help you with discovery. And in exchange for all of this, you get nothing."

No one in their right mind would agree to that. The reality is that Uber, and many other companies, conceal arbitration clauses in their user agreements, and force their users to agree to these clauses in order to use their services. This is done by credit card companies. This is done by airlines. This is done by corporations that own nursing homes. Why do they do this? The reason that they do this is because these large companies know that the results of arbitrations are almost always much more favorable to the company than the results of a jury trial. They are seeking to limit a person's access to the courts. They are seeking to limit a person's ability to bring a lawsuit. In some cases the corporations insisting on these clauses are in cahoots with the companies running the arbitrations.

We see these arbitration clauses in our nursing home cases. People who work in the nursing home industry, and people who work for insurance companies that insure nursing homes, have admitted that they like these clauses because the results are often more favorable to them than the results of jury trials.

Challenging Arbitration

At The Dickson Firm, we oppose forced arbitration in every case where the Defendant tries to force it. We have been fighting arbitration clauses for decades. If you research this issue, you will see that a great many of the appellate cases throughout the State of Ohio on the issue of forced arbitration are cases that our firm has handled. There's only one case ever decided by the Ohio Supreme Court involving the issue of nursing home arbitration. That was a case that our firm handled and argued to the Ohio Supreme Court.

I have more experience fighting arbitration clauses than any nursing home attorney in the State of Ohio. I am the only attorney in the State of Ohio who has ever argued this issue to the Ohio Supreme Court. I have argued this issue before multiple courts of appeals.

When I first started fighting these clauses, there were very few appellate decisions that addressed this issue because very few attorneys fought these clauses in the trial courts much less through the appellate courts. But over the hears I have won case after case and made good law in the Appellate Courts with respect to these clauses.

Why do we fight these clauses?

Well, first and foremost, the owners and the operators of nursing homes attempt to force these cases to binding arbitration because it restricts our ability to conduct discovery. When you are in front of an arbitration panel, as opposed to being in front of a judge, you cannot force the nursing home to give you information they do not want to give you. You cannot subpoena witnesses and force them to testify if they do not want to testify. Your ability to conduct discovery is severely limited. As the Plaintiff in the case, the party with the burden of proof, limiting your ability to conduct discovery is extremely problematic.

Further, arbitrations are much more expensive than litigation. When arbitrating a case, you often have a panel of three arbitrators. Each of those arbitrators charges for their time. A typical rate would be $300.00 an hour. So if you have three arbitrators, all the work that is done on the case is being billed at the rate of $900.00 an hour. If you have a Motion that you have filed in the case, the arbitrators would charge for their time reading that Motion, reading the Brief in Opposition, and ruling on that Motion. That is why many organizations that provide arbitrators charge very high filing fees. In a lot of cases, the filing fees are $50,000.00 for large cases.

So what can you do?

First, if you are admitting someone you love into a nursing home, make sure you read the admission agreement very carefully. If you find an arbitration clause, don't sign it. If the nursing home insists that you sign it, try your best to document that they are requiring you to sign the arbitration clause as a condition of admitting the person you love into the nursing home. If they require you to sign the arbitration clause as a condition of admitting the person you love into the nursing home, it is not enforceable. Ask if you can make changes to the arbitration clause. Ask if you can opt out of the arbitration clause.

Many arbitration clauses provide a provision so that you can rescind it or cancel it within a certain period of time. So if the person who you are working with at the nursing home to admit your loved one requires you to sign the arbitration clause at the time that you admit your loved one, and the clause provides a period of time when you can rescind that agreement, simply write a letter shortly after admission and withdraw your agreement to the arbitration clause.

If you find yourself with a claim and the nursing home is insisting that claim has to be arbitrated, please call us at The Dickson Firm. We have a great deal of experience fighting these clauses. We have an exceptional track record of defeating these clauses. We have argued this issue in multiple courts of appeals throughout the State of Ohio. We have won on this issue many, many times. And if we are forced to ultimately arbitrate your claim, if we are not able to defeat the arbitration clause, which rarely happens, we have a great deal of experience arbitrating cases and a great many strategies to maximize your recovery if we are forced to arbitrate the case.

If someone you love has been neglected or abused in a nursing home, please call us at The Dickson Firm at 1-800-OHIO-LAW as we would be happy to talk with you and help you in any way that we can.