Nursing homes are increasingly incorporating arbitration agreements into admission documents signed by incoming residents that require claims arising out of the care (or the lack of care) at the nursing home to be arbitrated instead of being filed in court and tried before a jury. By agreeing ahead of time to arbitrate disagreements that arise in the future, nursing home residents are waiving their important right to a jury trial in the event that they are negligently or recklessly injured or abused while in the nursing home’s care.
A recent analysis of 1,794 closed long-term care claims between 2004 and 2013 for occurrences between 2003 and 2012 were grouped into one of two categories: the non-arbitration category included claims where there as no arbitration agreement and claims where an arbitration agreement was challenged and held invalid; the arbitration category included claims where there was an arbitration agreement that was not challenged and claims where an arbitration agreement was challenged and held enforceable.
The analysis was based on a database of claims reported by 34 long-term care providers (eight of the ten largest providers in the United States) that represent 220,000 long-term care beds (approximately 16% of the long-term care beds in the United States), primarily in skilled nursing facilities (nursing homes) but also including independent living facilities, assisted living facilities, home health care, and rehabilitation beds.
The analysis found that 798 of the 1,794 closed claims had an arbitration agreement in place, of which 235 were challenged. Of the 235 that were challenged, 107 were held unenforceable. The analysis found that 61% of the closed claims in the database were resolved without arbitration and 39% of the closed claims had arbitration agreements in place. More of the closed claims were resolved without any payment in the arbitration category than in the non-arbitration category: 28.8% of the closed claims in the arbitration category were resolved with no payment being made, compared to 19.2% in the non-arbitration category.
12.9% of the non-arbitration claims had payments in excess of $250,000, compared to 10.0% in the arbitration category.
The average total costs for closed claims subject to arbitration agreements was 16% lower than the average total cost of closed claims that were not subject to an arbitration agreement ($155,000 compared to $184,000), with average costs being much higher in both categories where a payment was made ($212,393 for the arbitration category compared to $223,601 for the non-arbitration category; for claims without payments, the averages were $13,881 for the arbitration category and $18,627 for the non-arbitration category).
The average total indemnity payment for closed claims in the arbitration category was $125,212 where the arbitration agreement was not challenged and $287,231 where the arbitration agreement was challenged and upheld; for the non-arbitration category, the average total indemnity payment was $138,909 where there was no arbitration agreement (996 of the 1,103 total in the non-arbitration category had no arbitration agreement) and $605,841 where there was an arbitration agreement that was determined to be invalid.
There was little difference between the two categories with regard to the average number of days it took to settle claims: 779 days in the arbitration category (635 claims) compared to 805 days in the non-arbitration category (1,029 claims). When arbitration is not challenged, the number of days before settlement is comparable to claims that are not arbitrated (747 days for the arbitration category versus 770 days for the non-arbitration category).
What is our take-away as to the analysis of long-term care closed claims where arbitration agreements are in effect versus where there are no arbitration agreements?
Any “savings” in costs and/or payments, which are small as shown by the analysis, does not justify eliminating the right to have an unbiased jury determine the issues when it is alleged that nursing home neglect or nursing home abuse has caused injury or other harms to vulnerable nursing home residents.
If you or a loved one suffered injury or death while a resident of a nursing home in the United States, you should promptly seek the legal advice of a local nursing home attorney in your state who may investigate your nursing home claim for you and represent you in a nursing home case, if appropriate.
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