When you combine forced arbitration and nursing homes, the results can be maddening.
A February 21 article in The New York Times tells the story of how the family of a 100-year-old Massachusetts nursing home resident killed by her roommate is fighting back against the forced arbitration clause hidden in a contract.
What is Forced Arbitration?
If you have ever purchased a cell phone, opened a credit card account, received a student loan or performed one of hundreds of other commonplace transactions, you have probably agreed to a forced arbitration clause without even knowing it. This clause is often buried deep in the service contracts that people sign when purchasing a service.
Forced arbitration, as the name implies, forces you into arbitration should any sort of dispute arise over the service you are receiving. The clause strips away your rights to go to court over the dispute – instead, you have agreed to have your case decided by a private arbiter.
But that arbiter is often hired by the service provider, and his or her decision is final. There is no judge or jury, and the arbiter does not have to disclose the reasoning behind that decision. What is even worse, the arbiter will almost always rule for the service provider, since he or she has either been directly hired by the provider or has close ties to the company.
A Tragedy Compounded
The Times article focused on the case of Elizabeth Barrow, who, police said, was strangled to death by her 97-year-old roommate. Even though workers at the facility, Brandon Woods in South Dartmouth, MA, said the roommate was a risk to herself or others, she was still allowed to room with Mrs. Barrow.
But thanks to the forced arbitration clause Mrs. Barrow’s son agreed to, the nursing home was shielded from accountability.
That might change, however, thanks to Scott Barrow’s insistence that justice be served. He has filed a lawsuit against Brandon Woods, and the strategy used by his lawyers could go a long way toward eventually preventing nursing homes from being able to use forced arbitration as a shield.
Preying Upon Uncertainty, Confusion
As the Times reporters astutely observed, forced arbitration clauses are particularly insidious when part of nursing home contracts. These are extremely complex documents, often signed by either elderly people with diminished mental capacity or family members who are emotionally vulnerable because they are about to admit a parent.
Thankfully, however, legislators in 16 states, as well as the District of Columbia, recently asked the federal government to deny Medicaid and Medicare funds to facilities that use forced arbitration clauses. Baron & Budd has reached out to those states in order to offer help to help put an end to this practice.