About Rob Schenk: Rob Schenk is a lawyer with the law firm Schenk Smith Trial Attorneys based in Atlanta, Georgia. The Schenk Smith Law firm focuses exclusively on representing families with loved ones that have been seriously injured or killed in nursing homes.
In this episode, Steve and Rob Schenk discuss:
1. Why do nursing homes so greatly want residents to sign binding arbitration?
- Arbitration is an alternative to litigating a case in a court of law. By signing a binding arbitration you are forfeiting your right to litigate your case in a court of law. The nursing home benefits from this because it keeps the case out of the private eye. Everyone in the case will be held to a confidentiality agreement. Studies have also proven that companies which require arbitration will ultimately benefit from arbitration because they are the company that hires the arbitrators.
2. Alright, so what you’re saying is that it’s kind of like the employers, the nursing homes, they have relationships with the arbitration panels or, there’s a friendly kind of, you watch our back, we’ll watch your back kind of thing?
- I won’t say that’s explicitly what’s happening because that would be unethical, but the statistics show that arbitration awards compared to jury awards tend to favor the defendants, in this case meaning the nursing homes.
3. So if they come out with large verdicts, or awards against nursing homes, the nursing homes aren’t going to pick that particular arbitrator again, right?
- That’s right. It’s the free market. They’re aware of the fact that if the industry continues to get burned from one particular arbitration company, they can just choose another arbitration company.
4. The other option, if you don’t sign an arbitration agreement, is that you have the right to take the case in front of a jury. Jurors deal with the case in front of them and they try to get it right and without bias, prejudice, or other types of conflicts that an arbitrator might have.
- That’s the basis of the Seventh Amendment. You want your community to hear your case, and decide the outcome because theoretically, they are, they are the benefactors of whatever the decision is. The jurors are the gateway to protecting the community that that nursing home sits in. The jury can see this as their way to step in as the community and put a check on that system.
5. Are there any advantages to potential nursing home residents signing a binding arbitration agreement?
- None. You may be told up front that it is less expensive and faster than hiring and paying a lawyer. In many cases neither instance is true as you end up paying an arbitrator hourly to review your case when in court of law cases most of the same services are paid for with your filing expenses.
6. How is an arbitrator hearing a case different than when a jury hears a case?
- An arbitrator is expected to apply the law as applicable to their area but the information and judgements are ultimately under their discretion.
7. So if a nursing home resident signs a binding arbitration agreement are they allowed to be represented by an attorney?
- You can be represented by an attorney but some agreements word their agreement in a way that makes you believe you can represent yourself.
8. What are some of the best reasons to not sign a binding arbitration agreement?
- The best reason not to sign an arbitration agreement is because we live in a country that has a Constitution. The constitution allows civil trials with the jury to hear your claims. I believe that 12 community members can do a better job of understanding what’s fair, and what’s allowable and what’s preferred in a particular community, versus an arbitrator that is employed by an arbitration company that is selected by an industry to hear claims.
9. It might take longer to get your day in court than with an arbitration. Is it worth waiting a little longer to get in front of a panel of jurors who are your peers, as opposed to an arbitrator, who may be prejudicial and biased in favor of the nursing home?
- Yes. I would agree with that.
10. Have you ever seen cases where the nursing homes actually trick or deceive a resident into signing an agreement requiring a binding arbitration?
- If there’s any trick, it’s that there is no one competent enough to explain what arbitration is. The family members will usually just sign whatever documentation it takes to get their family member in, never understanding what they are signing.
11. Are there situations where the residents actually are signing the paperwork on when they’re getting admitted?
- Yes. For arbitration to take place the person who has signed the document must be deemed to a have sound mind. In my experience the resident should usually not be the one signing anything. However, there are sometimes exceptions.
12. Have you ever seen situations when an arbitration agreement was overturned because a potential resident signed, who was not of sound mind or didn’t have the requisite capacity?
- Yes. In the instance of people who sign their own documents to get themselves into nursing homes,or you have the nursing home saying that this resident was of sound mind. Those facilities, within 14 days of admission, are required to complete a comprehensive assessment of every resident if that nursing home was taking Medicare, Medicaid, which 95% of them do. They need to do an assessment of the cognitive capacity of the residents. So sometimes we see a nursing home argument that the person was able to sign themselves in and the next day, 24 hours later, 48 hours later Two weeks later says they were not of right or sound mind.
13. Have you seen instances when a nursing home is saying that this person has the capacity to sign this arbitration agreement, but then two weeks later you said the person is not of sound mind. So, which is it?
- There are instances where this does happen. More likely though is not the argument of capacity but, authority. No one is allowed to sign away the rights of another person unless there is some sort of written authority given. In most cases for a binding arbitration to be lawful the person signing the agreement has been lawfully recognized as being guardian or given authority over the resident going into the nursing home.
14. So there has to be their power of attorney, a directive, or a guardianship in order to be able to sign the arbitration agreement?
- That’s correct and even in those instances, this is state specific, but a healthcare power of attorney might not grant you the authority to sign the arbitration agreement.So even within the written authorities, sometimes the scope is not broad enough to allow the arbitration agreement and it is not enforceable.
15. If you’re a caregiver or a loved one and your loved one signed the arbitration agreement, or you signed the arbitration agreement, not really knowing what you did. Are there different ways that you can look at it where it may be able to be voided, or overturned?
- The best advice is that you should seek out the advice of an attorney in your state if you’ve signed one of these and you might not want to arbitrate. A Lawyer will advise you on the best way to move forward and have your case heard in court.
16. What would be some questions that people or loved ones should be asking about arbitration agreement paperwork?
- I would recommend asking if they have an arbitration agreement? Ask to see it, strike through it, and initial it. Make sure to note that you do not agree with those terms. Nursing homes cannot make the signing of an arbitration agreement mandatory for being admitted.
17. Would the patient or family be able to take the agreement and have it looked at by an attorney?
- There are different laws for different states, but you would be within your right to ask for an attorney to go over it. Make sure that you know how many days you have before a decision needs to be made about signing the document. Additionally, I would recommend whatever you do try to get it in writing as best you can.
18. Do they have the right to bring in an attorney or bring in an ombudsman when they’re right there in the nursing home office?
- Yes. You have the right you have the right to do all those things. Many of these documents encourage the resident or the residents family to get legal counsel. Many of these forms have language that states you’ve had the opportunity to review this with your attorney. So having an attorney there or having an attorney review the information is well within your rights.
- An ombudsman is just the Swedish word for advocate. A long term care ombudsman is actually an advocate on behalf of residents of nursing homes. The Ombudsman is your tool for when your rights as a resident have been infringed upon. If there’s been some type of physical injury or improper discharge from the facility. That’s when you need to contact a lawyer.
19. Would it be accurate to say that the verdicts or decisions from arbitrators, as opposed to verdicts from juries, in the court system are lower than in the court system?
- I have not conducted the studies but the statistics that I’ve seen would reflect that. Yes.
20. If you are admitting your parent or a loved one, and something really bad happens to that person. You may need additional medical treatment for them, or need money to pay the medical bills for the damage that was done in the nursing home. Are those things that you can get from a jury trial?
- The issue is that the process, the fairness is not the same as in a jury trial, although the measure of damages is probably going to be the same.
“Within 14 days of admission, there must be a comprehensive assessment of every resident if that nursing home was taking Medicare, Medicaid, which 95% of them do, and they need to do an assessment of the cognitive capacity of the residents.” — Rob Schenk
To find out more about the National Injured Senior Law Center or to set up a free consultation go to https://www.injuredseniorhotline.com/ or call 855-622-6530
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Website: Schenk Smith Trial Attorneys
Show: The Nursing Home Abuse Podcast
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Show notes by Podcastologist Kristen Braun
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