When abuse or neglect occurs in a West Virginia nursing home, the West Virginia civil courts should be an available resource for victims and their families to pursue justice. However, by signing an arbitration agreement that requires private arbitration as opposed to a lawsuit in court, victims and their families often find themselves unable to use West Virginia courts to pursue a dispute for nursing home abuse, neglect, and/or wrongful death.
At the Love Law Firm, we understand the difficulties that arbitration agreements present, and we’ve helped many West Virginia residents through both private arbitration as well as civil courts. Moreover, we’ve witnessed some issues that arbitration presents in nursing home abuse cases. To help you better understand these agreements and how they affect disputes, we’ve listed four of the most important things that you must know about arbitration agreements below.
MUST Know #1: Private arbitration can have some negative legal implications
Under arbitration, a panel will decide the outcome of a case instead of a jury. The panels come from individual parties, and in some cases, the panels can be biased toward the nursing home and favor the home in its decisions. Secondly, if the victim or the family are not satisfied with the panel’s ruling, the victim cannot appeal.
If you do lose or receive an unfavorable outcome in a private arbitration case, you may be unable to tell others about the abuse or negligence that occurred. This is because arbitration cases and their outcomes are often required to be kept confidential. This limits the victims’ ability to publicly disclose suspected instances of abuse or neglect.
MUST Know #2: The nursing home cannot deny admission for not signing
West Virginia nursing homes cannot force elderly individuals or their representatives (such as family members) to sign a binding arbitration agreement. Furthermore, a nursing home cannot deny you admission because you didn’t sign (or want to sign) an arbitration agreement.
Nursing homes can still use some creative strategies to entice individuals into signing. For instance, nursing home applicants may find themselves pressured into signing an agreement, or they may not even be aware of the implications of an arbitration agreement. This often gives the nursing home superior buying power when admitting individuals.
MUST Know #3: Arbitration Isn’t Mandatory
In 2011, the West Virginia Supreme Court of Appeals refused to accept a pre-dispute arbitration clause in a nursing home admission agreement, but in 2012, the United States Supreme Court overturned the State’s ruling. Four years later in 2016, an agency within the Health and Human Services Department issued a rule with an important provision:
A nursing home that receives federal funding cannot require that its residents resolve disputes in arbitration instead of court.
In other words, as of November 28, 2016, the U.S. Department of Health and Human Services will bar pre-dispute arbitration clauses in nursing-home contracts. Because most nursing homes receive federal funding, this law has a wide scope. However, victims and their families can still enter into arbitration, but only after a dispute arises between the victim and the nursing home.
MUST Know #4: Federal Law Will Enforce an Arbitration Agreement
It is important to remember that the U.S. Department of Health and Human Services only bars pre-dispute arbitration clauses. If victims and their families sign an arbitration agreement after a dispute arises, then Federal and West Virginia law will legally uphold the arbitration panel’s ruling.
MUST Know #5: Old Clauses Still Apply
The arbitration rule doesn’t apply to nursing home contracts signed before November 28, 2016. As such, if you or a loved one is currently in a nursing home, you may want to review the terms of the contract. Specifically, look for a pre-dispute arbitration clause. If you do find this clause, you may want to consider re-negotiating the terms of the contract with your nursing home.
Contact the Love Law Firm Today
When abuse, neglect, or wrongful death occurs in a West Virginia nursing home, it’s natural to expect full and fair justice for the injuries and/or death that occurred. Since 2014, the Love Law Firm has remained dedicated to fighting for victims of nursing home abuse in West Virginia courts, and we boast the experience and legal tools to diligently pursue and represent your case. To speak with Charleston, WV, attorney Charles M. Love, call our downtown law office today at (304) 344-5683.