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Proposed Federal Act would Invalidate Pre-Dispute Arbitration Agreements in Nursing Home Contracts

Proposed Federal Act would Invalidate Pre-Dispute Arbitration Agreements in Nursing Home Contracts

Proposed legislation has been introduced which would invalidate pre-dispute arbitration clauses which are commonly found in nursing home contracts. The Fairness in Nursing Home Arbitration Act would shift the determination of enforceability of such a clause to the courts, rather than an arbitrator. The purpose of the legislation is to prevent elders and their families from being subject to unconscionable contractual obligations.

Placing an elder family member into the care of a nursing facility is a difficult experience. Finding a nursing home that is suitable, affordable and that has openings can be challenging and time consuming. Too often, families are forced to settle for less than they had hoped for in their choice of a suitable home, and must accept the non-negotiable terms offered by the facility. Commonly included in those terms is a clause providing for mandatory pre-dispute arbitration prior to the filing of lawsuits for negligence or malpractice on the part of the nursing home or its staff.

A finding by the Centers for Medicare and Medicaid Services showed at least 91 percent of U.S. nursing homes reviewed had been cited for deficiencies in quality of care, quality of life or assessment of residents. Surprisingly, a higher number of deficiencies were reported in privately run facilities than in public homes or those run by nonprofit organizations. As many residents of these facilities cannot easily communicate to family members and loved ones, it is important to look for signs of elder care abuse. Indications of neglect or abuse include poor hygiene, unclean clothing, inappropriate dress for conditions, hazards not made safe for the elderly, bed sores, wounds, and sudden weight loss or dehydration. Bouts of depression and complaints of being restrained for extended periods of time also may indicate nursing home malpractice.

Nursing homes attempt to protect themselves from malpractice litigation by including mandatory pre-arbitration clauses in patient contracts. That means that even if a lawsuit is found to be merited through the arbitration process, patients are forced to go through the agonizing ordeal of recounting the abuse multiple times through a series of legal proceedings. At the very least, passage of the Fairness in Nursing Home Arbitration Act would at the least allow a court to declare an arbitration clause unconscionable and invalid. At best, it could render such clauses unconstitutional. The legislation has been referred to committee for deliberation, investigation and revision. If the bill passes committee review, it will be introduced for Congressional debate.

Nursing care patients and their families are entitled to the utmost of care and treatment when they entrust their care to a facility. Patients should not be subject to abuse, neglect or mistreatment. Sadly, it is often quite difficult for elderly patients to report such abuse to their loved ones. Our attorneys have successfully defended the rights of thousands of elder-care abuse victims and their families. If you, or someone you know, have been a victim of elder-care abuse, please contact us at for a free consultation. Our attorneys are available to assist in all aspects of your litigation.

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Gavin P. Lentz, Esq.
Bochetto & Lentz

Gavin Lentz (right) was selected as a "Super Lawyer" for 2006-2009 in New Jersey by Philadelphia Magazine. He has also been selected as a "Super Lawyer" by Philadelphia Magazine and the Legal Intelligencer in 2004, 2005, 2006 and 2007.

On September 16, 2002 Mr. Lentz was selected as one of the top 50 lawyers in Pennsylvania by the Legal Intelligencer.

He has made many television appearances, including on Fox News, The Today Show, Inside Edition, and The Phil Donahue Show.

Mr. Lentz is a member of the American Trial Lawyers Association and the Million Dollar Advocates Forum.

As a former prosecutor, he knows how to aggressively go after a nursing home to prove the facts necessary to protect your loved one's rights.

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