While the court found that the Federal Arbitration Act preempts a state
law providing that any arbitration clauses in contracts between nursing
homes and residents are null and void, it ruled that "Congress did
not intend for arbitration agreements, adopted prior to an occurrence
of negligence that results in a
personal injury or
wrongful death" to be covered by the act.- TRIAL Magazine
Most all nursing homes are now sliding a supposed arbitration "agreement"
into a multi-page admission document. These agreements aren't explained
to the residents and their families. No one realizes that they are signing
away their rights. Even if the agreement is read by the resident or their
family, it is hard to understand. Lawyers read and argue endlessly about
what the language really means, there is no way for the public to understand it.
People should have the right to arbitrate, if both parties are willing
to submit the claim to arbitration. However, in these wrongful death cases,
the claim actually belongs to the heirs. They are the ones who lost their
family member. Heirs aren't determined until death. At that time,
the heirs are determined and the claim arises. How could someone possibly
sign away the rights to something that doesn't even exist yet? How
can someone sign away rights that doesn't belong to them? Finally,
signing away rights such as these has had a terrible negative effect on
the care of the elderly. They are already poorly treated, and these agreements
have allowed nursing homes to have a "get out of jail free"
card. West Virginia's highest court has held that such agreements
in the nursing home setting are unconscionable, and thereby unenforceable.
Hopefully, North Carolina will follow this ruling.