In a large number of nursing home cases, facilities raise a defense - usually through preliminary objections - that an agreement to arbitrate exists and as such, the Common Pleas Courts lack jurisdiction. Nursing home arbitration agreements are normally found within the Nursing Home Care Admission Agreement however they can also be executed as separate agreements.
Whichever type of agreement you come across, you should know that under no circumstance can an Arbitration Agreement be made a term of admission into the facility.
Further, there are many compelling arguments that can be made that pre-dispute nursing home arbitration agreements are either wholly or partially unenforceable. Some common arguments against nursing home arbitration agreements are as follows:
- The individual nursing home resident did not have the capacity to enter into the agreement;
- The family member or person admitting the resident did not have the authority to reach an agreement to enter into the nursing home arbitration agreement;
- In wrongful death cases, the agreement to arbitrate does not apply to the separate wrongful death causes of action and that Pa.R.C.P. 213(e) does not allow separate wrongful death and survival actions arising out of the same conduct;
- The agreement is unconscionable;
- The agreement is invalid due to impossibility of performance. This scenario occurs most often when an individual or agency is charged with handling the arbitration but no long handles pre-dispute arbitrations in health care cases. Recently, many arbitration agencies have recently decided not to arbitrate pre-dispute arbitration agreements in healthcare cases.
It important to remember that although a nursing home arbitration agreement may not be enforceable, under certain circumstances, it may be beneficial to the injured party. This requires an individual analysis of the nature of the particular case, venue and damages claimed.
If you or a loved one are a victim of nursing home neglect or abuse, call Brent Wieand for a free and confidential consultation.