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Abstract: 

The nursing home population is extremely vulnerable to abuse, because by definition they suffer from severe and often multiple ailments, and many are cognitively impaired. The vast majority of nursing homes are the subject of reported deficiencies, so at first glance it would appear that at any given moment, many suits would be pending against nursing homes, and many additional suits would be ready to be filed. However, many nursing homes use an admission agreement that imposes a requirement of mandatory arbitration of any claim against the facility, thus precluding lawsuits. This is part of a larger pattern of arbitration requirements being imposed in “contracts of adhesion”— consumer contracts in which there is no real opportunity to negotiate terms. Nevertheless, in recent years, the trend has been for courts to uphold mandatory arbitration agreements. This article includes arguments that advocates have used to overturn mandatory arbitration agreements—although it is possible that if those cases were decided today, the court would rule in favor of enforcement.

Keywords: mandatory arbitration agreements; S2838; NCCNHR

Affiliations:  1: Editor, Victimization of the Elderly and Disabled.