Mandatory arbitration in personal injury cases usually favors corporate wrongdoers. Of course that is why corporations push so hard to include arbitration provisions in contracts when consumers purchase their products and services. For a detailed discussion on why and how arbitration favors corporations in personal injury cases see my previous post.

The Nursing Home industy's attempts to sneak arbitration provisions into their contracts with nursing home residents is a particularly egregious example of corporations taking advantage of people in their time of need. The overwhelming majority of residents and their families entering into a nursing home do not know what arbitration is and are not in the state of mind to fully comprehend its implications.

Furthermore, the idea that most residents and their families can shop around for a facility that does not have an arbitration clause or negotiate the terms of such a clause is simply ludicrous. The resident and their families are focused on the medical crises that has forced the resident into entering a nursing home. It is a very emotionally draining process for everyone involved. They are not focussed on whether quality care will be provided or whether they may have to sue the nursing home if bad care is provided. Preserving their right to sue the nursing home never enters their mind.

Even if it did enter their mind, it is usually not physically possible to take the time neccessary to find the few nursing homes in the geographic area where the resident lives that do not not require signing mandatory arbitration clauses. In most situations the resident is transfered emergently to a nursing home from a hospital or home environment after a sudden medical emergency.

As a Tampa Nursing Home Abuse Attorney, I see it all the time. The nursing home does not present the contract that includes the arbitration clause until after the person is already residing in the facility. It is usually stuffed in the middle of other required paperwork. The resident or family is asked to sign without an offered explanation. Most people simply sign all the paperwork without question.

Some members of congress have recognized the inherant problems with mandatory arbitration clauses in Nursing Home cases and have proposed the "Fairness in Nursing Home Arbitration Act of 2008" to remedy the problem. The bill, HR 6126, would make any arbitration clause entered between a nursing home and a resident unenforceable if entered before a dispute between them occured. It just recently passed the House Judiciary committee and is working its way toward the possiblity of a full vote on the floor of the House of Representives. Anyone that has a loved one in a nursing home or believes a loved one may enter a nursing home at sometime in the future should contact their local members of the U.S. House of Representatives or U.S. Senate and urge them to support HR 6126.

Scott Distasio
Tampa Personal Injury Lawyer

DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022

Tampa Nursing Home Negligence Lawyer

Posted by Scott Distasio at 12:51 PM | Permalink | Comments (0)

Arbitration is a contract in which the parties to it agree to have their disputes decided by an arbitrator instead of a judge or jury. It is promoted by its supporters as a fair, quick, and inexpensive way to have disputes decided. In fact, when the dispute is between seasoned businesses involving financial disputes, it often lives up to the praise it has received. That is because the disputes usually involve only economic damages, their is usually no arbitrator bias, and business contracts that provide for arbitration are often negotiated by companies with similar knowledge and bargaining power.

On the otherhand, none of the above factors are present in a personal injury claim. The damages almost always involve some sort of pain and suffering damages. Arbitrators hearing the same types of personal injury claims over and over again can become desensitized to a plaintiff's suffering. As a result, arbitration awards tend to be lower than jury trial awards. In addition arbitrators tend to come from the industry they are arbitrating. Therefore they have a natural bias in favor of the industry. When companies are involved on both sides, the bias does not affect results. On the otherhand, when a company is arbitrating against an individual, arbitrator bias can lead to close decisions favoring the company.

The main problem with personal injury arbitration, however, involves the unfair advantage the company has at the time the decision to enter into an arbitration agreement occurs. The company knows that arbitration tends to favor it in both outcome and award size. However, the consumer does not have this vital information at the time they sign the contract. Furthermore, the consumer does not believe they are going to be injured by the company at sometime in the future. If they did know either of these things, they would have no desire to enter the contract in the first place.

Unfortunately, the consumer rarely has a choice. The company usually offers the contract on a take it or leave it basis. The consumer either signs the agreement or forgos the companies product or service. When the product or service is abundant, it is not an immediate need, and most competitors are not requiring arbitration, the consumer can leave it. However, this is rarely the case. The industries that require arbitration agreements are usually the industries where the consumer has an immediate need for the product or service and most competitors require arbitration. Under the circumstances, it is not realistic to expect the consumer to do anything other than sign the agreement.

In the most egregious cases, the company uses superior knowledge and unfair bargaining power to add additional provisions to the arbitration agreement to further slant the outcome in its favor. For example, personal injury arbiration agreements often contain provisions limiting the amount of damages that can be awarded and limiting the amount of evidence the plaintiff can collect. Clearly, an informed consumer would never want to enter such an agreement.

Unfortunately, Florida Nursing Home Neglect lawyers and Florida Medical Malpractice Attorneys see these types of unfair arbitration provisions all the time. Health care providers like nursing homes, hospitals and doctors provide their services to very vulnerable people. These medical service consumers experienc all of the problems described above when they enter into arbitration agreements with their health care providers.

Scott Distasio
Tampa Personal Injury Lawyer

DISTASIO LAW FIRM
HELPING INJURED PEOPLE
OFFICES: TAMPA
888-595-0022

Posted by Scott Distasio at 10:07 PM | Permalink | Comments (0)