Philadelphia Personal Injury Attorney Blog | Pomerantz Perlberger & Lewis LLP

In looking at the Fairness in Nursing Home Arbitration Act, we considered the arguments of a representative of the American Health Care Association / National Center for Assisted Living (AHCA/NCAL), the largest organization representing nursing home owners in the country. Of course, the AHCA/NCAL is against the bill, which would invalidate pre-dispute arbitration clauses in long-term care contracts. Yesterday, we looked at the AHCA/NCAL's arguments in favor of arbitration, and today we will reconsider those arguments. According to the testimony of Gavin J. Gastonberry, who testified for the nursing-home organization, arbitration is more efficient, less adversarial, and faster, but is this really a better situation? Let's consider why more efficient, less adversarial, and faster are not necessarily the hallmarks of a better system:

· More efficient, according to the AHCA/NCAL corresponds to "cheaper." Without having to pay as much in terms of lawyer fees (which come out of the settlement or judgement, not out of the plaintiff's pocket), nursing home abuse can be dealt with at less cost to the nursing home owner's, making it a cost-effective practice to allow abuse to continue as long as it keeps operating expenses low.

· Less adversarial--people who go to court as a result of nursing home abuse or neglect leading to serious injury or wrongful death are often going for two purposes: to achieve justice by hurting the people who hurt them, and to make sure what happened to them doesn't happen to anyone else. This is the foundation of the adversarial atmosphere of the courtroom.

Gastonberry cites the "Culture of Cooperation" that the AHCA/NCAL is trying to foster and that has led to dramatic increases in quality of care. According to his testimony, this positive culture began in 2002, with initiatives like Quality First and the 2006 founding partnership in Advancing Excellence in America's Nursing Homes. It is no mere coincidence that this time is exactly when the nation's so-called "increasingly litigious environment" was ramping up (if one uses medical malpractice losses, which increased by over 40 % from 1992-2002, as an indicator). Instead, it is clear that this so-called "Culture of Cooperation" was actually the outgrowth of losses due to nursing home abuse litigation, that the litigation actually did what it was meant to do, by finally making it more expensive to abuse or neglect nursing home residents than it was to care for them.

· Faster is definitely an asset for people waiting on their settlement, but what the AHCA/NCAL testimony neglects to mention is that the fastest possible method of getting money to sufferers and their families is for nursing homes to simply admit to negligence and abuse and pay an acceptable settlement right away, something it is always in their power to do.

And, of course, all of the AHCA/NCAL's arguments about the advantages of arbitration are not necessarily germane because the Fairness in Nursing Home Arbitration Act does not ban arbitration agreements, it only bans arbitration agreement clauses built into admission documents. If arbitration really does promise significant benefits for people who have suffered as a result of nursing home abuse or neglect, they can still sign an arbitration agreement after the dispute has arisen.

If you or a loved one has been a victim of nursing home abuse or neglect, contact the experienced nursing home abuse lawyers at Pomerantz, Perlberger, and Lewis, LLP today for a free initial consultation.