Mandatory Arbitration – Forcing Vulnerable Patients to Surrender Their Rights

By Jeffrey J. Downey, Attorney representing clients in Virginia, Maryland and the District of Columbia. Phone 703-564-7318, email jdowney@jeffdowney.com

It is no secret in this country that medical negligence is the third-leading cause of death in this country.  (link https://www.cnbc.com/2018/02/22/medical-errors-third-leading-cause-of-death-in-america.html).  Nursing homes are one of the weakest links in our healthcare chain, so it should come as no surprise that such facilities can negligently cause the death or injury of the most vulnerable segments of our society.

In December, I wrote an article about mandatory arbitration contracts, and how nursing homes force their residents to sign over or waive their civil rights in pursuing a negligence claim in court. (See link http://www.jeffdowney.com/virginia-court-rejects-mandatory-arbitration-limitation-in-nursing-home-case/)

Now that the Supreme Court has weighed in on the arbitration issue in Kindred Nursing Centers v. Clark  (Link – www.courthousenews.com/wp-content/uploads/2017/05/kindred.pdf), we have already seen a rise in the use of these agreements.  In Kindred the Supreme Justices ruled that an arbitration agreement signed by the Power of Attorney was valid, even though the Power of Attorney did expressly give the agent the authority to enter into mandatory arbitration agreements.  The case was sent back to the Kentucky Supreme Court.

Similarly, in Marmet Health Care Center Inc. v. Brown, et al, 132 S.Ct. 1201 (2012) the U.S. Supreme Court reversed West Virginia’s Appellate Court’s holding that a nursing home arbitration clause was unenforceable.  In a consolidated case, the Sate Appeal’s Court that “as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence.” Brown v. Genesis Healthcare Corp., No. 35494 (W. Va., June 29, 2011), App. to Pet. for Cert. in No. 11–391, pp. 85a–86a.  The U.S. Supreme Court found that both state and federal courts must enforce the Federal Arbitration Act.

The Obama administration had pursued a regulatory change that prohibited nursing homes from using mandatory arbitration provisions if they received federal funding.  The Trump administration rolled back that regulatory change, paving the way for nursing homes to force patients to waive their rights as a condition of admission to a facility.

Most patients who enter a nursing home are not focused on the paperwork.  With numerous admission documents to sign, many patients have no understanding that they are waiving their rights to pursue their civil rights if they are killed or injured in a skilled nursing facility.

On the federal level, arbitration has been widely recognized as a method of alternative dispute resolution.  The Federal Arbitration Act (FAA), which dates back to 1925, has been used as tool to expand corporate interests.  Rhode Island Senator Sheldon Whitehouse’s filed an amicus brief opinion is that the FAA generally obligates courts to enforce arbitration clauses, However, it expressly excludes “contracts of employment of … workers engaged in … interstate commerce,” such as “seamen” and “railroad employees.”

Not long ago, I had to admit my mother into an assisted living facility, explains Downey.  They asked me to sign one of these mandatory arbitration provisions, so I crossed it out and wrote “refused” on the relevant page.  They admitted her anyway because it was in their financial interests to do so. I would encourage anyone who enters into any healthcare facility to read the admissions agreements and paperwork carefully and cross out any such agreements.

If you or a loved one have suffered from neglect by health care staff, contact the Law Office of Jeffrey J. Downey for a free consultation.

Serving clients in Virginia, Maryland and the District of Columbia. Address: , 8270 Greensboro Drive, Suite 810, McLean, VA, 22102, Phone 703-564-7318.


“The Real Reason John Roberts Just Offered a Low Stakes Win to Workers,” Whitehouse, Sheldon, Slate, January 29, 2019

http://www.jeffdowney.com/virginia-court-rejects-mandatory-arbitration-limitation-in-nursing-home-case/  )

“SCOTUS Finds Arbitration Act Does Not Apply to Interstate Transportation Workers”; Kramer, Liz, Arbitration Nation, January 15, 2019

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