Legislation Introduced to Preserve Right to Choose Nursing Home Lawsuit

A bill has been reintroduced in the United States Senate and House which would prevent nursing homes from forcing residents to sign an agreement to waive their right to file a lawsuit in court if they suffer bedsores, dehydration or another injury caused by nursing home negligence.

The legislation would invalidate mandatory arbitration provisions which are found in the fine print of many nursing home admission agreements, requiring that any dispute between the facility and a resident be resolved through a private arbitration process which is insulated from the public view.

Most families and residents are unaware that they are signing away their right to file a nursing home lawsuit in open court, and the non-negotiable provisions have become increasingly more common in recent years.

The Fairness in Nursing Home Arbitration Act of 2009 is bipartisan bill that was introduced in the U.S. Senate on March 4, 2009 by Senator Herb Kohl (D-WI) and Senator Mel Martinez (R-FL). The bill was introduced last week in the U.S. House by Rep. Linda Sanchez (D-CA). 

The bill does not ban the use of nursing home arbitration to resolve disputes between a facility and a resident, but would remove pre-dispute agreements that force the family to arbitrate instead of going to court to hold the facility accountable for nursing home abuse and negligent treatment of residents.

The nursing home arbitration process is generally seen as more favorable to the facility, as the panels selected in the agreements to hear the disputes normally receive a large share of their business from the nursing home industry and it is very difficult for a resident or their family member to obtain a fair resolution of their claim.

“The Fairness in Nursing Home Arbitration Act will make sure negligent nursing home corporations can be held accountable by our most vulnerable citizens,” said President Les Weisbrod of the American Association for Justice. “This bill will prevent nursing home corporations from unfairly preying on seniors and stripping away their legal rights.  Arbitration should only be voluntary, not hidden away in the fine print of contracts during our seniors’ greatest time of need.”

The Fairness in Nursing Home Arbitration Act was originally approved in September 2008 by the Senate Judiciary Committee in the 110th Congress and no amendments have been made to it since then. It was approved by the House Judiciary Committee in July 2008.

In the last session, the bill did not come to a full floor vote and failed to pass through Congress.