Court Blocks Nursing Home's Motion to Compel Arbitration By Josh Silverman on September 10, 2013

In the case of Setlock v. Pinbrook, the Pennsylvania Court of Appeals denied a nursing home's attempt to compel arbitration. In that case the victims' family claims that the nursing home negligently transported an elderly woman in a wheelchair causing her to fall out of the wheelchair and suffer a fatal head injury.  If the allegations are accurate, this was an entirely preventable death. 

Virginia nursing homes, like most nursing homes, frequently have new residents sign arbitration clauses under the guise that arbitration is a cheaper, faster, and fairer way to resolve disputes.  They often do not tell residents and their families that they do not have to sign the arbitration clauses.  The reality is that arbitration is often a more expensive and unfair method of resolving disputes. 

First, why is arbitration of a nursing home case more expensive than a trial?  If your case is tried by a judge in court the judge's salary is paid by the state.  In arbitration, the arbitrator charges hundreds of dollars per hour, plus there are arbitration fees and other expenses.  These costs can easily run in to the tens of thousands.

Secondly, why is arbitration of a nursing home case often unfair to the victim? There are multiple reasons why it is unfair.  First, the arbitrator may be biased.  Keep in mind the victim has one case, yet the nursing home will have multiple cases over time.  Naturally, the arbitrator would like to be hired again by the nursing home which can create bias.  The statistics bear this out.  Most arbitration has a favorable outcome to the nursing home.  There are very good and fair arbitrators, but there is no guaranty that a fair and unbiased arbitrator will hear your case.  Additionally, arbitration clauses often limit discovery.  That means your attorney may not be able to take depositions, access internal investigative reports, and your attorney is left to rely on the medical records which were prepared by the nursing home.  In other words, arbitration rarely is a level playing field.

Back to the Pennsylvania case.  The lawyers in that case did a great job.  They successfully argued that the arbitration clause was limited to financial issues like outstanding bills, not wrongful death and personal injury claims. 

I have a few pieces of advice. 

  1. Never ever sign an arbitration agreement for a nursing home or assisted living facility admission;
  2. If you have already signed an arbitration agreement, send a certified letter to the nursing home expressly opting out of the arbitration agreement and keep a copy of the letter;
  3. If you or a family member has been injured at a Virginia nursing home or assisted living facility, contact a lawyer immediately.  You have only 60 days to opt out of the arbitration agreement according to Virginia Code Ann. Sec. 8.01-581.12

Lastly, feel free to contact me if you would like a free review of your nursing home contract to see if it contains an arbitration clause or if you would like an experienced lawyer to investigate a potential case against a nursing home or assisted living facility.   I've been representing victims of nursing home and assisted living abuse for the last fifteen years and I would be happy to discuss your potential case.

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Josh Silverman

Silverman Law Firm LC

At the Silverman Law Firm LC in Richmond, VA, attorney Josh Silverman and his team represent victims of personal injuries and medical malpractice. Josh Silverman has been recognized as a "Virginia Super Lawyer" every year since 2013 and was selected as a 2015 Top Rated Lawyer in Healthcare Law based on his AV Peer Review Rating in Martindale-Hubbell©.

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