The passage of a new rule allowing Alabama and the nation’s nursing home residents and their families to sue facilities for negligence has hit a wall. Per Alabama Public Radio, major flaws exist in the way nursing home arbitration litigation is currently handled. While a Mississippi federal district court recognized these systematic defects, a lawsuit filed by the American Health Care Association may still prove successful in preventing families from pursuing justice through litigation.
The lawsuit claims that regulating nursing homes should not be subject to regulation from the Centers for Medicare and Medicaid Services, the agency which proposed the rule. The AHCA referred to the rule intended to elevate the quality of care for more than a million residents nationwide as “arbitrary and capricious,” even though the rule would prevent nursing homes from having clauses within their contracts that stop residents and their families from filing lawsuits if a resident suffers injury or hardship.
ConsumerAdvocates.org offers several explanations as to why companies such as nursing homes often prefer “forced arbitration” as opposed to fighting a lawsuit in court. Among the most significant is that it tends to severely inhibit the options a consumer, or in this case, a nursing home resident, has if they have an issue or a dispute with facility. In other words, forced arbitration is largely beneficial for the company or nursing home facility, and not particularly so for the consumer or resident.
In addition to giving nursing home patients who have been wronged little legal recourse, forced arbitration lacks some of the other benefits of a traditional court system. Residents have no way to file an appeal if they are not satisfied with the outcome of arbitration, and there is also no judge or jury present to ensure laws are adhered to, as there would be in a traditional courtroom setting.