Nursing Home Abuse Lawyer Virginia Beach
It’s never easy to admit a loved one into a nursing home. The decision is often made during a time of crisis. Perhaps the person fell and broke a hip and needs long-term care. Or maybe they endured an extended hospital stay and can no longer care for themselves. In some cases, a noticeable decline in health makes it clear that around-the-clock care is necessary.
Family members often do their best to ensure their loved ones are safe and well cared for, all while dealing with complicated emotions like guilt, fear, sadness, and anxiety. They may feel pressure to choose the right facility while handling stacks of paperwork. In times like these, it’s easy to miss what could harm you and your loved one later on.
We’re talking about a mediation or arbitration clause—something that many nursing homes include in the stack of papers you have to sign to admit your loved one into their facility.
Our Virginia Beach nursing home abuse attorneys understand how these clauses can be used against you in the future. At Shapiro, Washburn, & Sharp, we advise caution when signing them—we explain why below.
Even if you did sign a mediation or arbitration clause and now feel the nursing home was negligent, call us today at 833-997-1774 for a free consultation. We will review the facts of your case to determine whether you may be able to challenge or void that agreement.
What Does the Nursing Home Admissions Process Involve?
When you choose a nursing home for your loved one, you will typically go through an admissions process that involves several steps:
- Facility tour
- Interviews
- Medical evaluations
- Financial disclosures
- Binding admissions contract
The binding contract explains the rules, policies, and legal agreements that govern your loved one’s care. Many nursing homes include a mediation or arbitration clause in this stack of agreements. At first glance, these can seem harmless or even helpful, but they can have significant legal consequences, particularly if your loved one is ever harmed due to negligence or abuse.
What is a Mediation or Arbitration Clause?
A mediation or arbitration clause states that if you and the nursing home get into a dispute—such as one about the quality of care your loved one receives—you will try to resolve it through mediation or arbitration instead of filing a claim and potentially having a judge or jury decide.
Mediation Clause
Mediation involves a neutral third party, called a mediator, who meets with both parties and works to resolve their disputes in a collaborative manner. This individual tries to help both parties reach an agreement through discussion and negotiation.
Mediation is usually a non-binding process. That means that while the mediator may be highly skilled in conflict resolution, they don’t have the power to make a final decision. The two parties must ultimately agree to a resolution.
Mediation can be helpful in some cases. It typically costs less than litigation or arbitration and doesn’t bind participants to a specific outcome. Cases are often resolved more quickly, and the process is less expensive than a lawsuit. If both parties act in good faith, it can provide everyone with a fair way to reach an agreement.
However, there’s a big difference between choosing mediation and being forced into it through a contract you signed in the admissions process. This is why it’s critical to review your contracts carefully before signing.
Arbitration Clause
Arbitration is similar to mediation, with one key difference—instead of helping the two parties reach an agreement, a third-party arbitrator has the authority to make a final decision about the issue themselves. It’s like having a judge without having a judge.
Depending on the details in the contract, the arbitrator’s decision can be binding or non-binding, though it’s typically binding in the case of nursing home contracts. That means both parties must adhere to the arbitrator’s decision.
The arbitration process is similar to a court case in that each party presents its side to the arbitrator, though in a less formal setting. Once each party has presented its case, the arbitrator considers everything and makes a final decision.
Like mediation, arbitration can help reach a resolution more quickly than a lawsuit. It’s typically a less complex procedure, and it also costs less than arguing a case in court.
However, when you agree to arbitration, you could be waiving your constitutional right to a trial by jury.
What Are the Drawbacks of Mediation and Arbitration Clauses?
The most serious drawback of signing either of these clauses is that they could require you to give up your right to take the facility to court if something goes wrong. Suppose your loved one becomes the victim of negligence, medical malpractice, physical or emotional abuse, or even wrongful death. In that case, you may not be able to pursue a legal claim against the facility and its staff members.
You may also be subject to strict confidentiality rules that prevent you from talking about your ordeal, which means the facility gets to safeguard its reputation even though it acted improperly. In some cases, the mediation process may be skewed in favor of the nursing home, particularly if the family members are pressured to accept an agreement that is not in their best interests.
If you enter arbitration, the nursing home typically hires a private arbitrator to oversee the process. Since the nursing home is paying the arbitrator, that individual will likely have a financial incentive to protect the facility, which creates an unfair bias against the victim and their family. Arbitration usually allows for less evidence gathering, which can weaken your ability to build a strong case.
Though billed as fair and impartial, many arbitration agreements are anything but.
In short, these agreements often work against families seeking justice for nursing home abuse or neglect.
What Can I Do If I’m Presented a Mediation or Arbitration Agreement?
It’s important to know that you are not required to sign an arbitration or mediation clause to have your loved one admitted into a nursing home. The law requires the facility to explicitly inform you that you do not have to sign it.
The admissions personnel must also explain the agreement and ensure you understand it thoroughly before signing it.
Even if you already signed such an agreement and now you’re facing a situation in which your loved one was the victim of neglect or abuse, you may have legal options.
Here’s what you can do:
Refuse to Sign: Federal law prohibits nursing homes that accept Medicare or Medicaid from requiring you to sign binding arbitration agreements as a condition of admission. So you are within your rights to refuse to sign without having that harm your loved one’s admission.
Request Changes: If you see a clause that involves mediation or arbitration and makes you uncomfortable, you can choose to negotiate with the facility. Ask them to remove or modify the clause. If they refuse, you may be better off visiting a different facility.
Challenge the Clause: If something happens and you want to make a legal claim, talk to your nursing home neglect attorney. Sometimes, they can invalidate such an agreement, particularly if you can show that it was signed under duress or that the language was misleading to the point that you didn’t completely understand what you were signing.
Get Legal Help: If you suspect that your loved one has been neglected or abused and you signed a mediation or arbitration clause, talk to your attorney right away. There may still be a way you can bring a case forward. Or your attorney may be able to represent you in the mediation or arbitration process to help improve the outcome for you and your loved one.
How Can a Nursing Home Abuse Attorney Help?
If your loved one has been injured or neglected in a nursing home and you know you signed a mediation or arbitration agreement, contact us at Shapiro, Washburn, & Sharp immediately. We’ve helped families like yours fight against unfair clauses, negligent facilities, and abusive practices. We will evaluate your case and pursue every option to hold the nursing home accountable.
We can even help you through an arbitration process, as we did for an 80-year-old woman who suffered injuries at a nursing home that led to an amputation. After a two-day arbitration hearing, we helped achieve a $300,000 award for our client.
Please call or visit us in one of our many offices: Virginia Beach, Hampton, Norfolk, Portsmouth, and Chesapeake.