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Scott Cooper
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Why Is Mandatory Arbitration In Nursing Home Contracts Wrong?

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Below is a Letter to the Editor in the July 2, 2012 edition of the Legal Intelligencer explaining why mandatory arbitration provisions in nursing home contracts are wrong. What other reasons do you have why these provisions should be prohibited and found not enforceable?

Letter: Mandatory Arbitration in Nursing Home Contracts

To the Legal:

I have read Joel Fishbein's article regarding mandatory arbitration in nursing home contracts appearing in the June 22 edition of The Legal Intelligencer ("Appropriate Jury Trial Limitations Found in Nursing Home Contracts"). The majority of my practice of the past 15 years has been representing families whose loved ones have been harmed while living in long-term care facilities. I feel a few points need to be touched upon in response to his article.

1. Irrespective of the assistance of hospital administrators, Internet resources and visits made in advance, signing a mother, father or spouse into a nursing home is invariably an emotional, stressful and frightening undertaking. In reality there is not even the slightest resemblance between leaving your mother at a nursing home and a "commercial" transaction to obtain a credit card or new car.

2. If it is true that there are many positive aspects to resolving disputes through a mandatory arbitration then there is no reason why such an agreement cannot be made through the advice of counsel once a claim is presented. The contracts at issue here are pre-dispute and always signed without the benefit of legal advice. Anyone who questions an admission director (the one who obtains the signatures to an arbitration agreement) will realize they are not positioned to explain the implications of the agreement.

3. The argument that juries are "guided solely by emotion" is a recurring one often carted out in these discussions. There is, however, a small matter of the Seventh Amendment to the Constitution, which guarantees the right to trial by jury. Wherever the legality of pre-dispute arbitrations may fall to argue that it is inappropriate for a jury to hear a case of nursing home neglect contravenes one of the cornerstones of our country's jurisprudence. If that's the core policy argument for these mandatory arbitration "agreements," then they should be consigned to the dustbin of history.

The best way for a nursing home to protect its bottom line is to provide care consistent with accepted standards of practice. There are many facilities in our state that are nurturing and skilled in caring for the elderly and infirm. For those that do not follow the rules and cause harm there is no better remedy than justice meted out by the members of the community. Mandatory arbitration locks the doors to the courthouse and benefits wrongdoers, not those wronged.

Martin S. Kardon

Kanter, Bernstein & Kardon