When older Americans suffer major injury or illness, their loved ones may find themselves under the gun, making expensive and complex decisions about their care. They’re likely to be slammed, too, with stacks of paperwork from caregiving facilities. It’s tough stuff to take in — and it too often ask them to sign documents that will boot them from constitutional protections of the civil justice system and into the secretive, private system of forced arbitration.
The U.S. Supreme Court—loaded with appointees from a business-friendly party—has backed “corporate controlled” arbitration systems in several rulings, further arming them with bans on class-action lawsuits. This has led to burgeoning injustices, cases in which “corporate wrongdoers … completely escape any legal accountability,” according to the Center for Justice & Democracy at New York Law School, Public Citizen, and the National Consumer Law Center.
The groups have amassed representative cases showing how forced arbitration forecloses plaintiff’s pursuit of remedies from harms in the civil justice system, as the Constitution guarantees.
Their case list should be concerning to us all because of the range and sweep of matters in which this process is demanded, not just in health care but also with: child sexual assault, credit cards, banks, debt collectors, data breaches, video gaming, home and car buying, vehicle rentals, concerns about colleges’ quality, student loans, ticket brokers, travel websites, wage theft, and workplace discrimination (claims both of racial and gender bias).
Corporate interests, including nursing home operators, may downplay the effect on consumers of arbitration agreements.
But a family in Colorado found after repeated legal challenges that such accords can create nightmares. They signed one to get their 90-year-old relative into a caregiving facility but found that it shielded a problem nursing home after a horrible incident: Its employee, local law enforcement authorities found, hurled the elderly woman against a wall, fracturing her hip. Her injuries contributed to her death, which the coroner ruled a homicide. The nursing home went to court to keep the family from suing the facility or its operators, citing the forced arbitration agreement. Lower courts said no. But the Colorado high court said the case could not be considered in the civil justice system and had to be kicked into the secretive and intimidating arbitration system.
What is forced arbitration? These are “proceedings [that] bear little resemblance to court,” as the New York Times has reported. These critical, decision-making proceedings “have been conducted in the offices of lawyers who represent the companies accused of wrongdoing.”
The Times, in a terrific series, detailed how arbitration all too often stacks against claimants, notably consumers, workers, and patients. Arbitrators aren’t judges, independent but checked still by voters and peers and conducting their business in public. Instead, they often are onetime corporate lawyers, many employed by for-profit companies that make it clear to them that companies steer many cases to them and provide their bread and butter. Cases aren’t resolved in public. Results don’t need to be published or shared, so the paper says, arbitration can end up with terrible, one-sided results.
Nursing homes have fought tooth and nail for arbitration, contending it protects them against frivolous suits and provides a speedier, more efficient, lower cost, and fair way to resolve claims. But 16 states and the District of Columbia disagreed. They and other consumer groups said arbitration hid bad care and too many patient-consumers were treated unfairly. They pushed the Centers for Medicare and Medicaid Services to issue a new rule barring nursing home arbitration clauses. The agency since has reversed itself and leaned in favor of nursing homes and arbitration.
In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage inflicted on vulnerable seniors and their loved ones by nursing home abuse and neglect. Contrary to what doctors, hospitals, nursing homes, and insurers may claim, medical malpractice and negligence suits against caregivers aren’t a bogeyman of the health care system. They provide those who have suffered grievous harm with needed financial support and the knowledge that the civil justice system recognizes in public the injury inflicted on them. Resolution of claims can take time and can be stressful, if not downright scary. Plaintiffs and good lawyers don’t pursue cases frivolously.
Instead, as a growing body of research shows — and the Center for Justice and Democracy has been great at highlighting — medical malpractice cases and nursing home suits can be beneficial not only to harmed individuals but to safeguarding all patients and the integrity of the health care system. A small slice of doctors generate a disproportionate number of malpractice cases, and many of these practitioners are involved in multiple cases. It is the rare exception that a good doctor has one bad day and ends up in court. Instead, for patients’ sake, doctors, licensing boards, hospitals, and insurers ought to be policing the medical ranks better and getting bad MDs with many malpractice losses out of the business.
This won’t happen if bad medical professionals and institutions, notably nursing homes and hospitals, can bury patients in bumpf, gull them in dire circumstance into signing forced arbitration agreements, and hide shoddy, injurious work.