Many nursing homes attempt to evade liability by inserting arbitration clauses in nursing home admission paperwork without telling the resident or their loved ones.  Unfortunately, many courts enforce these unconscionable agreements.

A son should be precluded from filing a wrongful-death suit against a nursing home where he had signed a binding arbitration agreement prior to admitting his father to the facility, the Supreme Judicial Court has ruled.

The son, a college-educated claims manager, argued that since his Superior Court complaint named a treating physician and other medical personnel who were not parties to the arbitration agreement, enforcing it would unfairly require him to address part of the case in court and part of it in arbitration.

But the SJC disagreed and reversed a Superior Court judge’s ruling after finding that nothing in the arbitration provision was procedurally or substantively unconscionable.

"[The son’s] failure to read the agreement ‘word-for-word’ makes no difference, as we have long held that, absent fraud, a party’s failure to read or understand a contract provision does not free him from its obligations," said Justice Robert J. Cordy, writing for the court.

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Although many courts enforce arbitration clauses in admissions paperwork, some clauses have not been enforced because the person who signed the arbitration agreement did not have legal authority or there was no agreement on who would arbitrate the case.

Denial of Arbitration–South Carolina

Fields v. Magnolia Place, 04-CP-42-555 (Feb. 7, 2005)

The Honorable Judge Roger L. Couch denied Defendant’s Motion to Compel Arbitration because signatory did not have legal authority to bind the resident, and that the arbitration provision was vague, indefinite, and lacking material terms.

 Benton v. Summit Place, Inc., 2004-CP-23-0267 (Nov. 17, 2004)  Here is Judge Hill Order denying Defendants’ Motion to Reconsider.

The Honorable Judge D. Garrison Hill denied Defendant’s Motion to Compel Arbitration because there was no mutual assent to arbitrate existed because the chosen arbitration forum is no longer available.

DETRA L. BRUNER, as next of kin of LEOLA BRUNER (DEPP), deceased,
Appellee, v. TIMBERLANE MANOR LIMITED PARTNERSHIP, and its successor
in interest, TIMBERLANE MANOR LIMITED LIABILITY COMPANY, d/b/a
GRACE LIVING CENTER, Appellants.

No. 103,028

SUPREME COURT OF OKLAHOMA

2006 OK 90; 2006 Okla. LEXIS 94

December 12, 2006, Decided

Detra L. Bruner filed suit against Grace Living Center, alleging that her mother’s death was caused by the nursing home’s negligent care. Grace Living Center filed a motion to dismiss or in the alternative to compel arbitration and stay the proceedings. The district court found that the nursing home care did not involve interstate commerce; the federal arbitration statutes are not applicable to the nursing home admission agreement; and, the binding arbitration provision in the nursing home admission form is unenforceable under § 1-1939(D) and (E) of the Oklahoma Nursing Home Care Act, 63 O.S.2001, §§

1-1901, et seq. The district court denied the motion to dismiss or in the alternative to compel arbitration. Grace Living Center appealed. This Court retained the appeal. Affirmed

SHARON OSTROFF, Individually and as Power of Attorney for Lillian Restine,

Plaintiff, v. ALTERRA HEALTHCARE CORPORATION, Defendant.

CIVIL ACTION NO. 05-6187

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

2006 U.S. Dist. LEXIS 50730

July 25, 2006, Decided

Sharon Ostroff, individually and as power of attorney for Lillian Restine, her mother, filed suit against Alterra Healthcare Corporation ("Alterra") for personal injuries suffered by Restine while she was a resident at an assisted living facility operated by Alterra. Defendant moved to compel arbitration pursuant to a Residency Agreement signed by plaintiff Ostroff. In an Order & Memorandum dated June 7, 2006, the Court denied defendant’s motion to compel arbitration. Ostroff v. Alterra Healthcare Corp., F. Supp. 2d , 2006 WL 1544390 (E.D. Pa. June 7, 2006). In that Order & Memorandum, the Court held that the Residency Agreement was a contract of adhesion and thus procedurally unconscionable. Id. at *5. The Court also ruled that the Agreement was substantively unconscionable, because it severely restricted discovery available to plaintiff n1 and reserved access to the courts for defendant while requiring plaintiff to arbitrate all disputes. Id. at *8. Because the arbitration clause was procedurally and substantively unconscionable, the Court refused to enforce it. Id. Defendant has now filed a Motion for Reconsideration and to Vacate that Order of June 7, 2006. For the reasons below, defendant’s motion is denied.