Challenges in Nursing Home Lawsuits

Two recent legal developments pose obstacles for nursing home negligence lawyers seeking to obtain full compensation for their clients who have suffered personal injuries due to nursing home abuse or neglect or have lost a loved one due to nursing home neglect or abuse.

First, many large nursing home corporations have included arbitration clauses in the fine print of their admission contract.  When new residents are considering a skilled nursing facility or long-term care facility for themselves or a loved one, the risk of personal injury or fatality is often far from their mind, or actively suppressed.  Nursing home corporations take advantage of this state of mind, as well as the lack of information and bargaining power, to slip arbitration clauses into the resident’s contract.  

An arbitration clause may not seem like an important consideration.  Some residents may even believe that arbitration, if necessary, may save them time and money associated with protracted litigation.  However, arbitration clauses are included to deprive residents of essential legal rights and to tip the odds in favor of the nursing home.  For example, the arbitration clause may pre-select an arbitrator who is biased in favor of the nursing home.  In addition, the arbitration may result in exorbitant fees that prevent injured residents from pursuing a claim.  

Both state and federal courts have considered the legality of arbitration clauses.  The results vary.  In some states, the courts have ruled that arbitration clauses violate the constitutional right to a jury trial.  However, insurance companies and large medical corporations have packed courts with pro-insurance judges who often uphold the arbitration clauses.  You will need to speak with a nursing home negligence lawyer to learn the status of this issue in your State.  Even if the arbitration clause has been upheld, it may be found inapplicable in a particular situation, such as a wrongful death claim where the beneficiaries have not signed off on the arbitration clause, so it is not binding on them.  

In addition to arbitration clauses, jury bias has proven to be a substantial hurdle for a nursing home negligence lawyer seeking to recover for personal injuries or wrongful death caused by neglect or abuse in the setting of a long-term care facility or skilled nursing facility.  One such bias is called defense attribution bias.  This bias arises when jurors examine facts showing that a nursing home was neglectful or negligent in the care of a resident.  Applying hindsight, some jurors may tend to blame the resident or the resident’s family for choosing that particular nursing home.  This is absurd, but this bias arises in every nursing home malpractice case.  Lost in the course of blaming the family for putting their loved one in a nursing home, is the fact that the nursing home failed to provide acceptable skilled nursing care.  An experienced nursing home negligence lawyer or wrongful death lawyer in Cleveland, OH will address the defense attribution bias throughout the course of a lawsuit in order to avoid a negative verdict.

 

Thanks to Mishkind & Kulwicki Law Co. for their insight into nursing home abuse and challenges for a lawsuit.

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