Many Missouri and Illinois residents ask my St. Louis personal injury law firm this question, and the answer is yes, in the event that one or more of several different conditions can be demonstrated. The guiding factor in signing an arbitration clause is that it must be entered into by the consent of both parties — neither of which must be compelled into signing the arbitration clause.
What exactly is an arbitration clause? This is language in a nursing home’s admission contract that stipulates that a resident or family members will not sue the facility, but are bound to enter into arbitration to settle any disputes. Arbitration is typically overseen by some third party specified in the agreement, and both parties agree to abide by whatever decision is made.
One of the problems with a mandatory arbitration clause forced by a Missouri or Illinois nursing home is that elderly and disabled patients are often especially vulnerable to abuse and neglect, or simply being convinced into signing something that may not be in their best interests. Additionally, nursing homes often word these arbitration clauses strongly in their own favor, rather than it being a mutual type of agreement meant to be fair toward both parties.
While in general, courts will uphold certain arbitration clauses in nursing home admission documents, both federal and state laws have been enacted to protect the health and well-being of nursing home residents.
There are several methods that may be used to help fight an unfair or illegal arbitration clause forced by a nursing home.
- The named arbitrator either doesn’t handle health care cases or is structurally biased toward one party over the other (usually the nursing home).
- The contract formation was improper; i.e. both parties did not enter into the arbitration clause with consent, or one side was forced or compelled to sign it.
- The resident lacked the mental capacity to enter into the arbitration clause, or the family member who signed the clause did not have legal standing to consent for that resident.
- The arbitration clause was unconscionable, meaning that either:
- the contract was reached between parties where there was an extreme inequity in bargaining power or the stronger party forced the other party to sign without giving them a true choice (procedural unconscionability); or
- the contract contains terms that are extremely unfair toward one party and biased toward the other.
Some states require both types of unconscionability be present in order to strike down an arbitration clause, while others will overturn a clause on the basis of only one type of unconscionability.
Some other reasons courts might strike down arbitration clauses forced by a nursing home include:
- instances where a dispute does not fall within the scope of the agreement;
- situations where outside parties that did not sign the arbitration clause try to force it into effect; and
- a company already allowed the litigation process to start in court, but then attempts to enforce the arbitration clause (usually because the case seems to be going against it).
If you or a loved one hope to fight against a mandatory arbitration clause forced by the nursing home before you could be admitted, please contact my St. Louis personal injury law firm to find out your rights under the law. In many cases, these mandatory arbitration clauses can be overturned and victims of nursing facility neglect or abuse can pursue the justice they deserve in a Missouri or Illinois civil court of law.
Disclaimer: The choice of a lawyer is an important decision and should not be based solely upon advertisements.
Source: “Representing the Elderly: Fighting mandatory arbitration clauses” by Paul Bland. October 2012, Volume 48, No. 10.