In some ways, elder abuse law lags behind other areas of law, and as a result, our clients can feel frustrated by the processes they are up against. In a system that is not always designed to protect older individuals, it can be incredibly daunting to be subject to contracts that work better for bigger companies and facilities than they do for the individuals signing them.
One clear example of an unfair practice in elder abuse law is the reality of arbitration agreements. These clauses appear in contracts of many kinds, including contracts with banks, businesses, and online services. The language of arbitration clauses almost always states that if there is a dispute that arises between the person receiving the service and the company providing the service, those parties must work the dispute out in a private arbitration setting. The individuals are barred from bringing their claims to court.
Recently, Congress banned companies from including arbitration clauses revolving around sexual harassment in their contracts. This legislation means that if an individual has been subject to some kind of sexual harassment, she or he will automatically have the right to pursue their claim in court, even if there was an arbitration clause in the contract they signed.
Unfortunately, elder law is further behind. Congress has not banned the same kind of clause in elder abuse cases, which means that residents of long-term care facilities will often be subject to private arbitration in disputes with nursing homes. Courts will uphold these clauses even when individuals dispute them, ruling that the arbitration agreements are valid across many different scenarios.
What Is the Impact of an Arbitration Agreement in a Nursing Home Contract?
The effects of this kind of clause can be detrimental: for one nursing home resident in Texas, his family was totally barred from suing a facility when another resident somehow broke into his room and assaulted him at night. The family wanted answers, and they wanted the facility to be subject to public accountability through the court system. However, the family members had signed an arbitration agreement on behalf of the nursing home resident. They were then forced to pursue the dispute in private arbitration, which they felt gave them much less of an opportunity to receive the compensation and answers they deserved.
If you have signed an arbitration clause, there is a strong possibility courts will uphold the clause and decide you cannot bring your elder abuse claim to the open courts. There are attorneys, however, that can walk you through your options and explain whether you can challenge the arbitration clause to make it unenforceable. For example, if you can successfully prove to a court that the arbitration clause puts you in an unreasonably unfair position, the court will sometimes decide the clause is invalid and force the facility to defend your claim in court.
Do You Have a Claim for Elder Abuse or Neglect in Maryland?
At Lebowitz & Mzhen, we are attorneys who have dedicated our careers to fighting elder abuse in Maryland. We understand that contracts can be unnecessarily confusing, and we are experts at walking clients through various contractual provisions so that they understand exactly what they are facing. If you might have an elder abuse claim and are looking for an attorney, call us at 800-654-1949 for a free and confidential consultation. We serve clients in Prince George’s County, Charles County, Baltimore County, and Montgomery County.