BEWARE OF ARBITRATION, WAIVER OF JURY TRIAL AND CAPPING OF DAMAGES CLAUSES IN THE RESIDENT CONTRACT AT A NURSING HOME OR ASSISTED LIVING FACILITY

Deciding whether to place a loved one in a nursing home or assisted living facility is difficult. While determining which nursing home or assisted living facility is right for your loved one, you should pay special attention to the resident’s contract that is presented to the resident and you to review.

Often buried deep within the resident’s contract is a provision that says your loved one gives up his or her constitutional right to a trial by jury if the nursing home or assisted living facility neglects, abuses or kills your loved one. The resident’s contract often provides that any injuries sustained by your loved one due to the negligence or other act of the nursing home or assisted living facility will be resolved by arbitration and the decision of the arbitrator is binding and may not be appealed to a court. Furthermore, the resident’s contract often calls for any damages to be capped at a figure that will not begin to compensate your loved one or his or her estate for the damages caused by the nursing home or assisted living facility.

Why do nursing homes and assisted living facilities hide this language in the resident’s contract? Simple. They know that you and your loved one are emotional and under tremendous pressure to find an appropriate facility. They reassure you during the “sales presentation” that your loved one will be provided with individual care and attention. They tell you that if you purchase the highest level of care that you and your loved one will have nothing to worry about. In other words, they know that the resident and you are vulnerable and will sign virtually anything once the decision is made that the nursing home or assisted living facility is right for your loved one.

We recommend that the resident mark through and initial or otherwise delete any provisions in the resident’s contract that requires the resident to give up important constitutional rights such as giving up the right to trial by jury by requiring arbitration and by capping potential damages. When confronted with this demand, the nursing home or assisted living facility frequently honors the demand. If a nursing home or assisted living facility will not honor this demand, then go elsewhere for the safety of the resident.

dougbeam.com

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