As nursing home facilities are facing increasing litigation, it is natural for such facilities to try to limit their liability as much as possible. While this can be great for the bottom line of a facility, nursing home patients may unintentionally waive their right to collect damages or fully litigate any negligence or personal injuries that occur. Many patients sign these documents without the assistance of an attorney, assuming that they are just boilerplate legalese. It is important to take these agreements seriously and to understand them before checking in a patient.
One of the biggest changes in these agreements is that many facilities insert clauses that keep conflicts from being heard in a court of law. In many instances, the clauses are arbitration and most of them are binding, which means that a patient waives their right to have the claim heard in a court of law whether a patient agrees to the arbitration process or not. If a court process is allowed, in many instances the litigation process is extremely curtailed, preventing a full discovery on the potential issues and in many cases limiting the damages that can be awarded for various claims.
A recent case in Illinois has found that some nursing homes have tried to enforce arbitration clauses in instances of abuse or neglect by the facility. Fortunately, in this case, the plaintiff did not sign the nursing home admission agreement and thus was not bound by the arbitration clause and she was able to sue for the injuries on behalf of her elderly mother. Be especially careful about these clauses when a loved one is admitted under power of attorney as both parties may potentially waive their rights to seek redress in a court of law. However, this case underscores the importance of reviewing the document before seeking to admit a loved one into a nursing home facility.
Recent legal developments in Illinois have been mixed. Illinois has held that nursing home agreements are generally enforceable except for actions under the Illinois Wrongful Death Act. This means that personal injury claims may be subject to arbitration and any limited process it entails. Nursing home agreements are essentially contracts so the principles of contract law will apply. This means that such agreements can only bind the parties that intended to be bound. A wrongful death claim is not something the complaining party is bound to arbitrate because the party that is bound is the nursing home resident. It is unclear whether the Illinois Wrongful Death Act did not apply because of the language of the law or simply because the complaining party had simply not signed the contract.
Some contracts try to bind the relatives of the admitting party. Read these very carefully or else the next of kin may waive their rights to litigate all personal injury suits.
This article is for general informational purposes only and is not to be construed as legal advice. Do not rely on the above information as all cases are different and different laws apply to different cases. Consult an attorney in your area for further guidance.