You Have Cherished Rights for a Reason – Do Not Lose Them

Introduction

Do you even know what rights you are forfeiting when you blindly sign documents at a medical facility? What follows will hopefully give you greater background on the serious and significant rights you may lose by blindly signing documents which are unfamiliar to you and where you have no idea of their full meaning nor impact upon you and your family.

Do you know someone injured while receiving care in a nursing home or hospital?

If you or a loved one has been injured while receiving care in a nursing home or hospital, you know the frustration that accompanies such a situation. What you might not know is that you or the injured individual may have agreed to resolve, unknowingly and in advance of receiving services, to resolving future disputes with the faculty through arbitration.

What is arbitration?

Arbitration is an alternative method for resolving legal disputes. The fact is, arbitration can severely restrict your opportunity for fair and just compensation for your loss. In other words, it can be a really bad thing for your case.

Why is arbitration bad?

There are a number of reasons why you, your family, and friends may want to avoid arbitration.

First, the hospital or nursing home will usually choose the arbitrator, essentially a lawyer or often a retired judge, to render a decision. An arbitrator may be biased in favor of the hospital or nursing home whereas in civil court the parties are heard before an impartial judge or jury.

Secondly, the reality is that most all arbitration proceedings are final, meaning there is no right to appeal. The arbitrator’s decision is final. Without the right to appeal one’s claim, the decision is solely within the hands of the arbitrator. Furthermore, arbitrators are not necessarily bound by legal precedent, which provides the arbitrator more discretion in making a decision.  Another downfall to arbitration is the ability of the hospital or nursing home to select the site for the arbitration hearing. One might be forced to travel a long distance to pursue one’s case, whereas traditional lawsuits can often be filed close to the plaintiff’s home.  Finally, hospitals and nursing homes likely draft all of the terms and conditions in the arbitration agreement. Don’t leave it to their lawyers’ imaginations to harm your case!

How or when did you agree to arbitration?

Most often hospital patients and nursing home residents may unknowingly agree to resolve their complaints over substandard care through arbitration when signing medical consent to treatment or medical records release forms. Usually, these consent forms are obtained before the individual even ever receives care. Yet, any document one signs may have a binding arbitration agreement hidden in the fine print.

Can hospitals and nursing homes enforce these arbitration agreements?

The law surrounding these arbitration agreements is conflicted. Generally, it depends on the law of the state in which the contract was made. In 2010, the Supreme Court of Illinois ruled in favor of upholding such arbitration clauses. In 2012, the United States Supreme Court approved of such agreements as well. This means simply that doctors, hospitals, and nursing homes can and will seek to aggressively have you forfeit your rights to a jury trial or even a bench trial for resolution of disputes.

What should you do about arbitration clauses?

If you or someone you know seeks care from a nursing home or hospital, be sure to read the fine print of any documents that a medical provider requires one to sign. Beware of ploys, unsolicited introductory letters or advertising gimmicks that entice one to sign on the dotted line for a free gift. If you have time, shop around. Most nursing homes and hospitals do not require binding arbitration agreements before providing their services.  Too often individuals are made aware of these arbitration agreements only after they have signed them and substandard care has been provided. By that time many of your constitutional rights, such as trial by jury, have been waived!  Also, in the case of a medical emergency, it is quite common in all the confusion and excitement of the moment, you will unknowingly be asked to sign off on your rights.  CALL US Immediately before signing anything.  Do not be misled when presenting with a medical emergency, that the hospital or medical facility can threaten to provide no services until you sign the document.  Emergency services must normally be provided to the injured.

Contact Hassakis & Hassakis, P.C.

Hassakis & Hassakis, P.C. handles many types of litigation including medical malpractice, nursing home negligence, auto/truck collisions and premises liability cases. For more information or to ask any questions you have about filing hospital or nursing home negligence lawsuits, please contact our injury lawyers by calling (800)-553-3125 or emailing us at [email protected].

See examples below of consents/letters NOT to sign.

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Example 1

HEALTH CARE ARBITRATION AGREEMENT

PLEASE READ CAREFULLY

  1. Explanation

Under federal law two or more parties may agree in writing for the settlement by arbitration of any dispute arising between them.  Arbitration is a method for resolving disputes without involving the courts.  It is frequently faster and less expensive than using the court system.  In these arbitration proceedings, the dispute is heard by private individuals, called arbitrators, who are selected by the Resident and/or the Resident’s Legal Representative and the Facility.  The decision of the arbitrators binds both parties and is final.  By agreeing to binding arbitration, both parties waive the right to trial before a judge or jury.

  1. Agreement

The following is an agreement to arbitrate any dispute that might arise between ____________________(“Resident”) and/or _____________________(“Legal Representative”) and (“Facility”) (“Facility” includes the particular facility where the Resident resides, its parents, affiliates, and subsidiary companies, and insurers).  The parties expressly agree and voluntarily enter into this binding Health Care Arbitration Agreement (the “Agreement”).  The Resident and the Facility have entered into an Admission Agreement and acknowledge that such Admission Agreement constitutes the foundation of the relationship between them and all duties and obligations arising between them.  The Resident and the Facility further acknowledge that said Admission Agreement evidences a transaction involving interstate commerce.

The parties agree that they shall submit to binding arbitration all disputes against each other and their representatives, affiliates, governing bodies, agents and employees arising out of or in any way related or connected to the Admission Agreement and all matters related thereto including matters involving the Resident’s stay and care provided at the Facility, including but not limited to any disputes concerning alleged personal injury to the Resident caused by improper or inadequate care including allegations of medical malpractice; any disputes concerning whether any statutory provisions relating to the Resident’s rights under Illinois law were violated; any disputes relating to the payment or non-payment for the Resident’s care and stay at the Facility; and any other dispute under state or Federal law based on contract, tort, statute (including any deceptive trade practices and consumer protection statutes), warranty or any alleged breach, default, negligence, wantonness, fraud, misrepresentation or suppression of fact or inducement.

____________________

Example 2

AGREEMENT TO ARBITRATE HEALTH CARE NEGLIGENCE CLAIMS

NOTICE TO PATIENT

YOU CANNOT BE REQUIRED TO SIGN THIS AGREEMENT IN ORDER TO RECEIVE TREATMENT.  BY SIGNING THIS AGREEMENT, YOUR RIGHT TO TRIAL BY A JURE OR A JUDGE IN A COURT WILL BE BARRED AS TO ANY DISPUTE RELATING TO INJURIES THAT MY RESULT FROM NEGLIGENCE DURING YOUR TREATMENT OR CARE, AND WILL BE REPLACED BY AN ARBITRATION PROCEDURE.

THIS AGREEMENT PROVIDES THAT ANY CLAIMS WHICH MAY ARISE OUT OF YOUR HEALTH CARE WILL BE SUBMITTED TO A PANEL OF ARBITRATORS, RATHER THAN TO A COURT FOR DETERMINIATION.  THIS AGREEMENT REQUIRES ALL PARTIES SIGNING IT TO ABIDE BY THE DECISION OF THE ARBITRATION PANEL.

_____________________________
Signature of Resident/Date

 

_________________________________
Signature of Facility Representative/Date

_____________________________
Signature of Legal Representative/Date
(if signing on behalf of Resident)

_______________________________

Signature of Legal Representative/Date
(if signing on his or her own behalf)