By Ohio nursing home neglect and abuse attorney, Blake Dickson

The New York Times recently published a guest essay by Brendan Ballou.  Mr. Ballou is a former federal prosecutor and the author of a forthcoming book called, "When Companies Run the Courts”. 

The essay published in the New York Times was adapted from that book.  In his essay, Mr. Ballou claims that America has a hidden justice system.  In that hidden justice system, decisions are made in secret, and judges are often paid by the very companies they are supposed to judge.  In any other system of justice, this would be called bribery.  However, in this system, it's called "forced arbitration".  Whether you realize it or not, you are likely affected by this system of forced arbitration.

We see forced arbitration in the context of nursing home cases.  No other lawyer in the State Ohio has opposed forced arbitration in the context of a nursing home cases more often and more vigorously than I have.  I am the only Plaintiff’s lawyer in the State of Ohio to have argued this issue before the Ohio Supreme Court.  If you research cases involving forced arbitration in the context of nursing home cases you will find that many of the appellate court decision that deal with this issue are cases that I handled for my clients.  We vigorously fight forced arbitration in every case where the Defendants pursue it.  Fortunately, most Defendants no longer try and force the cases that we are handling to involuntary arbitration.

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If someone you love has been neglected or abused in a nursing home, please call us at The Dickson Firm at 1 800 OHIO LAW as we would be happy to talk with you and help you in any way that we can.

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What can you do to avoid forced arbitration in your nursing home case?

No one wants to have to sue a nursing home because no one wants their loved one to be injured or killed.  Unfortunately we get calls every day from families whose loved one was neglected or abused in a nursing home.  In many of those cases the Defendants try and force the case to involuntary arbitration.  As indicated above, given our vigorous and very often successful opposition to these efforts the Defendants in our cases try and force fewer and fewer cases to arbitration.

If you are admitting someone you love into a nursing home or if you have recently admitted someone you love into a nursing home, you are likely confronted with a large packet of admission documents.  Those documents probably seem like basic documents that you had to sign to admit your loved one to a nursing home.  They may have dealt with things like the meals your loved one would receive.  They may have had a form giving your consent to have your loved one photographed and that photograph used in promotional  materials.  There may have been paperwork about billing.  There may have been other documents about your loved one's admission to the nursing home.  You may have been offered hair care services.  You may have been made aware of the availability of manicures for your loved one.  

However, buried in many of these admission agreements is an arbitration clause.

Now, under the law, this arbitration clause is supposed to be separate.  However, in many admission agreements, this arbitration clause is purposely buried within hundreds of pages of documents.

We recently handled a case where the nursing home resident herself was confronted with a 100 page admission agreement on an iPad.  There is no indication that she ever signed the agreement.  Her name appears in a font meant to look like cursive.  The nursing home neglect this woman.  Now they are trying to take away her right to a jury trial by forcing her to involuntary binding arbitration.  What is the basis – an arbitration agreement where her name is typed in a cursive font. The nursing home has no proof that the resident ever saw the agreement much less signed it.  But they are still trying to deprive her of her day in Court.

Why are these arbitration clauses so bad?

The reason that these arbitration clauses are so bad is that arbitration deprives your loved one the right to bring a lawsuit in court.  Fortunately, the Ohio Supreme Court decided a case years ago in which it held that the nursing home could not force a wrongful death claim to arbitration.  The reasoning is that if your loved one signs an arbitration clause, that does not bind his or her next of kin.  A wrongful death claim belongs to the next of kin.  When someone dies in a nursing home as a result of the substandard care in the nursing home, we are able to bring a lawsuit on behalf of each of the next of kin and recover for their mental anguish or emotional suffering and their loss of society, meaning their loss of the relationship with the decedent.  Those claims belong to the next of kin and the Ohio Supreme Court has decided that a nursing home resident cannot bind his or her next of kin to an arbitration clause.  This does not stop the nursing homes from trying to enforce these arbitration clauses in cases involving wrongful death.

What you need to understand is that if you or your loved one ultimately has a claim against the nursing home and you file a lawsuit in Court, the nursing home may file a motion to stay that case.  They will ask the Court to permanently and forever stay your case and force your case to involuntary, binding arbitration.  As Mr. Ballou talks about in his New York Times article, often the arbitrators are paid by the entity trying to force the case to arbitration.  So in the nursing home context, often the arbitrators are paid by the nursing home.  

Often the arbitrators are a part of the American Health Lawyers Association, which is a group of defense attorneys who represent nursing homes and hospitals and doctors when they are defendants in medical claims.

Understand that an arbitration clause is not a clause whereby if there is a dispute, you agree to informally negotiate or you agree to mediate the case.  This is not an attempt at informal resolution.  An arbitration clause is meant to forever stay your litigation and force your case to binding arbitration, usually using an arbitrator or arbitrators chosen by the nursing home or who belong to an organization chosen by the nursing home.

Arbitrations can be exorbitantly expensive.  Some arbitration companies require a filing fee of $50,000.00 if you are filing a large claim.  By contrast, when you file a claim in court, you usually pay a $100.00 filing fee.  You do not have to pay the judge for his or her time.  And so you can litigate your case all the way through a jury trial, and the court costs are nominal.  When you have an arbitration, often you have up to three (3) arbitrators who each charge you for their time.  If these arbitrators charge $300.00 an hour and they have to work on your case leading up to the arbitration, you can be charged $900.00 an hour for all three (3) of them to work on a motion or address a discovery issue.  If they each spend three (3) hours reviewing a Motion and a Brief in Opposition and issuing a decision on the motion, the cost would be $2,700.00 for the panel to decide a single motion.  In most cases that I handle we file multiple motions.  If the arbitration takes three (3) days at eight (8) hours a day plus eight (8) to ten (10) hours of preparation, you are talking about thirty two (32) hours of time spent by all three arbitrators at a rate of $900.00 per hour for a total of $28,800.00.  Assuming they had to rule on ten (10) motions or discovery disputes leading up to Arbitration the total cost would be $55,800.00.  Even if the arbitration clause provides for the two (2) parties to split the cost, you are still stuck paying $27,900.00 for the arbitration as opposed to a $100.00 filing fee in court.

Why would the nursing homes agree to incur this cost?

The nursing homes agree to incur this cost because they know that the outcomes are universally better in arbitration than they are in litigation.  As Mr. Ballou talks about in his article, in small claims courts, consumers win as often as 89% of the time.  Reviewing cases in front of two (2) leading U.S. arbitration providers, consumer win just 21% and 33% of their cases.  

Further, discovery is limited when it comes to arbitration.  This is a huge disadvantage for the plaintiff in the case.  If you are pursuing a claim against a nursing home, you are the plaintiff.  You have the burden of proof.  As a result, you need discovery. 

In every Ohio nursing home case that we handle here at The Dickson Firm, L.L.C. we propound discovery requests.  We send the nursing home a series of questions, known as interrogatories.  We send the nursing home a series of requests for documents.  We gather important documents.  We invariably have to file one or more Motions to Compel against the nursing home, which the judge has to rule on.  We often have to file a Motion to Show Cause asking the Court to hold one or more parties in contempt for refusing to comply with a Court Order.  We have to issue subpoenas to take the deposition of witnesses.  And if we go to trial, we have to issue trial subpoenas to compel people to come to trial.  

Little of this is possible in arbitration.  I was in an arbitration once and we were trying to depose a witness, and the arbitrator called the witness and the witness basically told the arbitrator that they were not coming to the deposition and there was nothing the arbitrator could do about it.  A judge can hold a witness in contempt.  A judge can grant a Motion to Compel against the nursing home.  A judge can grant a Motion to Show Cause against the nursing home and force them to appear in court and show cause why they should not be held in contempt.  A judge can hold a party in contempt.  That can lead to a ruling against that party.  That can lead to money sanctions.  I recently received sanctions against a nursing home for refusing to produce discoverable documents in the amount of $83,000.00.  Nursing homes often go to great lengths in litigation to hide important discovery.  You need discovery in a nursing home case.  The nursing homes know that in arbitration there is very limited discovery.  The nursing homes know that arbitration is extremely expensive, which deters a lot of people from pursuing it.  The nursing homes know that there is little to no discovery in arbitration, which benefits them greatly.  And the nursing homes know that most of these arbitrations are conducted by people favorable to them.  The arbitrators come from either organizations with which the nursing home has a long-standing relationship or organizations like the American Health Lawyers Association which is comprised exclusively of defense attorneys.

Nursing homes also know, that statistically, they fare much better in arbitration.  They win more often, and when they lose, the results are much smaller for the plaintiff.

So, if you are admitting someone you love into a nursing home, scour the admission agreement for an arbitration clause.  Ask the admission person if the admission paperwork contains an arbitration clause.  Refuse to sign it.  

If your loved one has been admitted to a nursing home in the last thirty (30) days, you probably have the right to revoke the arbitration clause.  Even if you are past the initial thirty (30) days, find the admission documents, see if there is an arbitration clause, and if there is, send the nursing home a written communication, a letter or an e-mail or both, indicating that you are revoking your consent to arbitration.  Even if you are past the time period for revocation specified in the agreement, if you revoke the agreement before a claim arises, you probably have at least a colorable argument that the arbitration clause is not enforceable.

If someone you love has been neglected or abused in a nursing home, please call us at The Dickson Firm at 1 800 OHIO LAW as we would be happy to talk with you and help you in any way that we can.