The Invalidity Of Nursing Home Arbitration Clauses

Nursing Home Arbitration ClausesThe recent Illinois Appellate Court decision in Sue Carter v. SSC Odin Operating Company, LLC, (885 N.E. 2d 1204, 319 Ill.Dec. 524 (2008) effectively invalidated all mandatory arbitration clauses in Illinois in a nursing home setting.  In Carter, the daughter of a nursing home resident brought a wrongful death and survival cause of action under the Nursing Home Care Act against the nursing home where her mother was a resident.  Ms. Carter executed a ‘Health Care Arbitration Agreement’ on her mothers behalf when she admitted her mother to the facility.  The arbitration agreement was to be governed by the Federal Arbitration Act.

After filing her case, the defendant – nursing home, filed a motion to compel arbitration pursuant to the earlier agreement Ms. Carter signed.  In denying the nursing homes request to compel arbitration, the court relied on the Section 3-606  and 3-607 of the Nursing Home Care Act;

Any waiver by a resident or his legal representative of the right to commence an action under Sections 3-601 through 3-607, whether oral or in writing, shall be null and void, and without legal force or effect.  210 ILCS 45/3-607 (West 2006)

Further, Section 3-607 states,

Any party to a cause of action brought under Sections 3-601 through 3-607 shall be entitled to a trial by jury and any waiver of the right to trail by jury, whether oral or in writing, prior to the commencement of an action, shall be null and void and without legal force or effect.  210 ILCS 45/3-607 (West 2006)

Judges have a sense of what’s right.  In analyzing the enforceability of the arbitration agreement the trial court stated the agreements were ‘indirection violation of emphatically stated public policy and for lack of mutuality.’  Put another way, the sophisticated nursing home lawyers, were attempting to negotiate with ordinary people in a desperate situation to find a decent facility.  The people were not  aware of the effects of their actions.

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