Nursing Home Arbitration Clauses: Will They Ever Go Away?


Authored By: Iris Garrett


Woman sitting in wheel chairThe nursing home industry is notorious for denying patients and their families their day in court, mostly through forced arbitration agreements. These agreements only allow for confidential, alternative dispute resolution where no judge or jury is present. Instead, the legal proceeding is placed in front of an arbiter or third party (often paid for by the nursing home) with little opportunity to seek or offer evidence in cases of negligent behavior, elder abuse, sexual harassment, and even wrongful death. Now, why would anyone choose a nursing home that participates in this process? It is usually unknown to them when they sign the dotted line, but things become pretty clear when they file a lawsuit.


This trend of burying arbitration clauses in admission contracts is something Public Justice’s Paul Bland calls “categorically heinous”. In an article in The Legal Examiner, he says it is “a grave injustice” that these potential nursing home residents and their families never see or understand these agreements, but yet their constitutional rights are completely governed by them. What’s more, Bland says arbitration is almost never stacked in the resident’s favor. He says groups like the American Health Care Association (AHCA) defend arbitration as a “fair and effective legal process,” but under its conditions, acts of wrongdoing by nursing homes never find their way into the public eye. Bland says if the same claims were decided by the court, more current and potential nursing home residents would be aware of the injustice, voice their concerns, and help deter these facilities from providing unsafe conditions.


The Centers for Medicare and Medicaid Services (CMS) nearly put a stop to nursing home arbitration last year. In September 2016, the agency issued a rule preventing federally-funded facilities from using forced arbitration or requiring residents to sign the agreements as a condition of admission. Before it could take effect, the rule was blocked by a U.S. District Judge in Mississippi (read more about this injunction here) and could not move forward unless CMS successfully appealed.


Unfortunately, Bland says the final day to challenge that Mississippi judge’s decision arrived earlier this summer with no appeal from CMS. Accompanying the missed appeal was the proposed H.R. 1215 bill which Bland says could roll back the prohibition on pre-dispute forced arbitration agreements further (read more about the proposed legislation here). If that happens and the legislation becomes law, Bland fears the doors of justice will be closed to even more suffering seniors and their families.


If you would like to Paul Bland’s full article, click here.



Photo Credit: Rafael Ben-Ari

Tort Reform – 10 Years Later in Mississippi


Mississippi Tort Reform 10 years later, Advocate Capital, Inc.In the 80s and 90s, the state of Mississippi was seen as a haven for those filing lawsuits.  Populist juries in the state were known to side regularly with plaintiffs and award large punitive damages.


However, in 2004, then Governor Haley Barbour led the tort reform charge in the Republican-controlled legislature that made Mississippi one of the first states to cap noneconomic damages and punitive damages.  Governor Barbour and his allies argued that tort reform was needed to ensure that the state could have decent health care – the claim being that doctors and hospitals were “fleeing” the state due to the threat of litigation.  Also, they argued that tort reform was needed to ensure a stable and prosperous business climate.  These are arguments that have been made many times since, but most have never been proven out.


Of course, the plaintiff bar argued (and I agree) that the sole purpose of damages caps are to make litigation issues into actuarial issues – i.e. if a defendant or insurance company knows that their maximum loss is fixed, they know exactly how much they can get away with and still remain profitable.  With these “reforms”, a plaintiff’s right to access the courts and their right to fair compensation is given short shrift in favor of the interests of big business and insurance companies.


A recent article in The Clarion-Ledger (Jackson, MS) gives a good, and relatively fair, overview of this issue.  The article can be read here.


Mississippi’s Don Barrett Secures $84.9M Settlement for Truckers


Advocate Capital, Inc. client Don BarrettA Federal Judge in Arkansas recently approved an $84.9M settlement in the Pilot Flying J scandal.   The case centered on more than 5,500 truckers who were promised rebates by Pilot Flying J, the nation’s largest retailer of diesel fuel, but never paid the promised rebates.    Owners of Pilot reportedly had no knowledge of the alleged scheme, and worked with Plaintiffs’ attorneys to make things right with the truckers.


Attorney Don Barrett who represented truckers said, “…we couldn’t have had this result in this short amount of time had Jimmy Haslam not stepped up to the plate, said he was going to do the right thing in an honorable way and he did it….”


Attorney Don Barrett’s firm is known  for taking on corporate giants such as big tobacco, Ford and Firestone, food manufactures and countless others to ensure justice on behalf of consumers.   This time he was leading the charge on behalf of truck drivers.  With expert negotiation skills and the eye of a tiger, determined to see a fair settlement for these workers, Mr. Barrett was able to secure a settlement of $89.4M for truck drivers who have dedicated their lives, on the road day-in and day-out, to serving manufactures, retailers and consumers.


Advocate Capital, Inc. is proud to support the great work of trial lawyers like Mr. Barrett and his team of experts who work tirelessly every day to ensure justice on behalf of consumers.


Lisa Wagner

Senior Vice President, Client Services


Case Expense Financing at a Net Cost of Less Than 1%*

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