Florida Supreme Court Looks At Nursing Home Arbitration

Posted on June 14, 2010

On Tuesday, June 8, the Florida Supreme Court heard Oral Arguments in a nursing home arbitration case, according to a Health News Florida report.

The nursing home industry increasingly prefers arbitration instead of lawsuits to settle difference. Skilled Florida nursing home abuse lawyers know that residents or their power-of-attorney are presented with the agreements upon admission. They mandate settling differences or lawsuits before a panel that will arbitrate the differences instead of going before a panel of jurors in a courtroom. Trial attorneys and consumer groups believe that the jury system should not be circumvented by this artificial arbitration alternative.

In the case before the court, Gayle Shotts challenged the arbitration clause of the nursing home, Winter Haven Inc., where he uncle lived and died. She filed a lawsuit saying the arbitration agreement was unconscionable and against public policy. She said she didn’t understand what she was signing.

Courts in Florida have treated arbitration clauses differently depending on where they are. In June 2008, the Second District Court of Appeal (2DCA) found that a nursing home arbitration agreement signed by the individual or their power-of-attorney was neither unconscionable nor against public policy. In the Shott case, the arbitration was to follow the AHLA/NHLA rules, which sets a higher standard of proof. The 2DCA severed the terms while the 4DCA declined to sever and the arbitration.

So when there is a difference at the lower court level, the highest court of the state must intervene.
The outcome of this case may determine how much limited liability a nursing home has when the resident signs an agreement. If you have been presented with an arbitration agreement, look at the capping of non-economic damages or pain and suffering, and preventing punitive damages or the awarding of attorney’s fees. All of that is designed to circumvent your rights to go to court under our U.S. Constitution. Decide if it is fair to decide the outcome of a case of negligence by signing away your loved one’s rights in advance of them entering the home. If most people understood what they were signing, they would simply refuse to do so. Stay tuned to this decision. The Shotts court docket is here.

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