An emerging trend in nursing home litigation has been the incorporation of arbitration clauses into admission paperwork. Under an arbitration provision, patients forfeit their right to a jury trial and disputes are resolved at a private arbitration hearing by an arbitrator. Similarly, some arbitration provisions limit an individuals economic recovery even though state laws provide otherwise.
While most patients and their families never anticipate the need to rely on an arbitration clause to resolve disputes such as injuries occurring to a patient during a nursing home admssion, arbitration provisions significantly impair individual’s rights. Many nursing home arbitrations are decided by a single arbitrator (who may be readily used by facilities) and use evidentiary provisions that can make the production of documents and testimony extremely difficult.
Recognizing the inherent unfairness of nursing home arbitration clauses, the Florida Supreme Court recently invalidated these provisions in two separate nursing home negligence cases (Gayle Shotts v. OP Winter Haven Inc. and Angela Gessa v. Manor Care of Florida Inc.) on the basis that the arbitration provisions undermine public policy and that such agreements impede on the rights granted to injured parties by the state’s legislature.
The invalidation of these arbitration clauses means that Florida courts will begin to see a new wave of nursing home negligence cases on their docket as nursing home patients are afforded the same right to trial as folks injured in a more conventional setting. As nursing home operators realize that they can no longer claim that they are entitled to preferential treatment with the use of arbitration clauses used in their favor, my hope is that better care for all Florida nursing home patients may be in the future.
GESSA v. MANOR CARE OF FLORIDA, INC., No. SC09-768. Supreme Court of Florida November 23, 2011