Private lawsuits are another avenue for exacting punishment against negligent and grossly negligent operators. However, a common drawback to this remedy is that many of the homes operate without the financial means to pay for their negligence, by not maintaining adequate liability insurance and shielding themselves behind layers of shell corporations. This is certainly the case with many of the smaller facilities.
In recent times, another barrier has come in the way of fully and adequately punishing wrongdoers. Arbitration.
Traditionally, victims harmed by nursing home negligence have sought their remedy through the courts, with juries making the final call on the issues of fault and damages. Arbitration removes these decisions from citizen jurors, turning them over, instead, to costly arbitrators. Business interests prefer arbitration, which is looked upon with disfavor by victims’ lawyers.
Arbitration of nursing home cases is not mandated by law. Rather, arbitration is something agreed upon by the parties. In the nursing home context, the arbitration agreement is typically contained in the package of admission documents. It is either signed by the nursing home resident or an authorized representative, usually a family member.
Courts generally favor arbitration agreements, Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005), but such agreements are subject to state law contract defenses such as unconscionability, Orkin Exterminating Co. v. Petsch, 872 So. 2d 259, 264 (Fla. 2d DCA 2004). To succeed in an unconscionability argument, both procedural and substantive unconscionability must be shown. Bland, ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So. 2d 252, 256 (Fla. 2d DCA 2006). If the arbitration agreement is not procedurally unconscionable, the court does not reach substantive unconscionability. Id. at 257; Eldridge v. Integrated Health Servs., Inc., 805 So. 2d 982, 982 (Fla. 2d DCA 2001).
Procedural unconscionability relates to the manner in which the contract was made. Bland, 927 So. 2d at 256. It involves issues such as the parties’ relative bargaining power and their ability to know and understand disputed contract terms. Id. A court can find a contract unconscionable if important terms are “hidden in a maze of fine print,” minimized by deceptive sales practices, or if the contract has a “take it or leave it” approach with an absence of meaningful choice on the part of the consumer. See Orkin Exterminating Co., 872 So. 2d at 265; Powertel, Inc. v. Bexley, 743 So. 2d 570, 574 (Fla. 1st DCA 1999).
To determine if an arbitration agreement is procedurally unconscionable, “a court must look to the `circumstances surrounding the transaction’ to determine whether the complaining party had a `meaningful choice’ at the time the contract was entered.” Gainesville Health Care Ctr., Inc. v. Weston, 857 So. 2d 278, 284 (Fla. 1st DCA 2003) (quoting Williams v. Walker-Thomas Furniture Co., 350 F. 2d 445, 449 (D.C. Cir. 1965)).
In Tampa HCP, LLc v Bachor, Fla: Dist. Court of Appeals! 2nd Dist. 2011, a case involving the death of a nursing home resident where the admission papers were signed by her daughter, the court pointed to the following factors in finding that procedural unconscionability was NOT shown.
- The admission paperwork was signed three days before the resident was admitted.
- The daughter was not rushed to sign the admission documents or given misleading information concerning its contents.
- The arbitration agreement was clearly labeled as such in large capital lettering at the top of the page.
- The agreement did not contain any limitations on damages, discovery and appellate rights.
- The agreement gave the daughter the right to have it reviewed by an attorney before it was signed and 30 days to rescind after execution.
- Execution of the agreement was not a precondition to the furnishing of services to the resident.
Although not the remedy of choice of Plaintiffs’ attorneys, arbitration can nevertheless produce fair and just results. (Because of privacy issues, it is uncertain what outcome differences, if any, are realized through the two remedies, although it is believed that the jury system provides better results for victims. However, if nothing else, victims’ lawyers oppose arbitration on principle alone, as an abrogation of trial by jury.) Whenever you or a loved one has been harmed by nursing home negligence or abuse, a lawyer should be consulted as soon as possible.
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Jeffrey P. Gale, P.A. is a South Florida based law firm committed to the judicial system and to representing and obtaining justice for individuals – the poor, the injured, the forgotten, the voiceless, the defenseless and the damned, and to protecting the rights of such people from corporate and government oppression. We do not represent government, corporations or large business interests.