Buffalo attorney Julie Bargnesi is a proponent of fairness to health care providers and patients alike. She’s not only an attorney who represents health care providers and is a part of the health care industry practice team at Harris Beach, she was once a nurse in a hospital where part of her job was advocating for patients. It’s just one reason she stresses the importance of having the ability to arbitrate cases from the nursing home setting; “This is fair to both sides, and as a nurse I was always seeing both sides of it,” she said. “There’s a lot of nursing home litigation in Western New York and it is time-consuming and expensive for everyone.”
Most states use arbitration agreements rather than having to resort to full-blown litigation that can take years, according to the article in a recent Buffalo Law Journal titled, “Nursing home arbitration enforceable in NYS.”
But not New York, because of a law that didn’t allow for arbitration agreements to settle incidents that occurred in nursing homes. Several states, including New York, refused to enforce arbitration clauses in nursing home admission contracts. Instead, they litigated.
However, in 2012, the issue reached the U.S. Supreme Court in Marmet Health Care Center v. Brown. That decision struck down any state law that didn’t permit an arbitration provision in the nursing home matter. The ruling held that the Federal Arbitration Act (FAA) overrules any state law that says arbitration clauses in nursing home contracts aren’t enforceable for lawsuits stemming from injury or death.
Despite the Supreme Court’s decision in 2012, the topic still isn’t well-known, the article explained. But nursing homes have started adding the clause into patient contracts, and the majority of families and residents are signing them. With the rise in litigation, the article says that it’s at least a tool that nursing home owners can use to give them some protection from costly verdicts.
Patients will still have protection, as cases can still be challenged in courts, and arbitration agreements can be struck if they aren’t properly constructed.
The arbitrator is like a judge who sees both sides and may say, “He’s kinda right and she’s kinda right, so I’m going to make everyone happy and split the baby.” Arbitration tends to be fairer.
Just like any contract, the article says that a court can review the arbitration agreement to make sure it is legal. A contract can’t take advantage of the resident or his or her family, and a nursing home can’t deny admission based on whether the arbitration agreement in the contract is signed.
The article urges patients and family members to be aware of this arbitration agreement, which will arbitrate all potential claims and waive litigation.
An Elder Law attorney can give you more information about these arbitration clauses and how they are handled in your state.
Make an appointment to see an experienced Elder Law attorney before signing any nursing home contract.
Reference: Buffalo Law Journal (July 27, 2015) “Nursing home arbitration enforceable in NYS”
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