Arbitration Has Come to Senior Living. You Don’t Have to Sign Up.

The Jinks family wanted to file a lawsuit against the facility where their father was attacked.

He was forced to leave a facility in Louisiana due to Hurricane Laura. He was diagnosed with dementia at the age of 80 and moved to a nursing home. They put a camera in his room to watch him.

Mr. Jinks was sent to the emergency room with facial bones and lacerations after another resident entered his room while he was sleeping and hit him. It took 11 stitches.

The Jinks family consulted a lawyer after Mr. Jinks recovered from his injury. His daughter said that they wanted the company to be held accountable. I wanted a jury to listen to the story.

The family had to get past the clause in the residency agreement to file the lawsuit. The day the family moved him in, Ms. Young used her father's power of attorney to sign the document.

In the event of a dispute, residents are required to submit to binding arbiters. The lawyer would rule on the claims with the parties having to split the costs.

Banks and financial firms, cellular companies, online marketers, and many other businesses have contracts with banks and financial firms that include some form of arbitration clause. According to the executive director of the National Consumer Voice for Quality Long-Term Care, the clauses are found in long-term care facilities.

The nation's largest long-term care company wouldn't comment on the Jinks case but said in email that "arbitrationallows parties to resolve a dispute in a more expeditious and cost- efficient manner than litigating in court."

For decades, advocates for residents, families and consumers have opposed mandatory mediation. Sometimes, both parties in a dispute agree to seek the services of a neutral third party, but it's not always necessary. You are saying that you waive your right to a court decision.

Eric Carlson, directing attorney of the legal advocacy group Justice in Aging, said, "Arbitrators in general are less sympathetic to residents than a jury would be." Over and over, the nursing home is doing business with these people. They want the nursing home to succeed.

According to a study done by the business school, companies that use arbitration more often are more likely to favor their positions. Some agreements give each party the ability to veto a certain number of arbitrators from a common list.

The public doesn't notice a lawsuit and trial because of the binding agreements. The agreement Ms. Young signed stated that the parties would not discuss any settlement, the facility, or the names of the people.

The system is a private one with a gag rule. It's in society's interest that these cases aren't public. If something horrible happens in an assisted living facility, it is important for the public to know about it.

When residents or their representatives sign these agreements, which are part of admission packets that can include dozens of pages, they may not realize they have waive their court rights.

After a hospitalization or health crisis, residents and their families are often dealing with paperwork at a time when they don't have a lot of time to look at documents or talk to a lawyer.

When Ms. Young signed her father's agreement, her sister and brother-in-law moved their father into his room She said it was very hurried. I probably didn't stay in that office for long.

She said nobody explained the agreement in detail. The Jinks family retained a lawyer who had to explain that her signature wouldn't allow for a court date.

Mr. Dishon said in an interview that he couldn't imagine any other constitutional right that you could sign over. Consumers are allowed to do this by courts.

Medicare regulations have prevented nursing homes from requiring binding agreements. Family members or residents are still being told to sign the papers despite the fact that they are being included in admissions packets.

Residents have 30 days to change their minds if they sign.

The rules for assisted living don't apply because it's not regulated by the federal government.

When Mr. Dishon filed a gross negligent suit against the company, they responded with a motion to have the case heard by an international tribunal.

Mr. Jinks's half of the expenses could be as high as $50,000 according to Mr. Dishon's argument.

The judge ruled last month that the arbitration should go on.

Mr. Jinks was discharged from the facility shortly after the attack due to his behavior being problematic.

His three children, who aren't bound by the agreement, are also suing for "loss of consortium" because of their dad's injuries.

Sometimes residents win and sometimes they lose when they challenge the agreements. The facts and the court determine it.

After a man died in a nursing home and his wife sued for wrongful death, a federal court in Kentucky ordered the man's family to give up their right to a jury trial.

When a daughter sued a residential care facility for elder abuse and wrongful death after her father's death, a California court refused to force the daughter to use an alternative method of dispute resolution. The court upheld the decision.

The National Consumer Voice and Justice in Aging want residents and their representatives to get rid of the clauses in the paperwork.

It's not required in nursing homes. If there are multiple competitors nearby, assisted living companies may not want to push the matter.

He said that you were not negotiating with the general Counsel. There is an administrative clerk who needs your business. It is a problem if you leave.

In response to a question about whether an individual could strike an arbitration clause, Brookdale said that it was not a deciding factor.

According to the American Health Care Association and the National Center forAssisted Living, only a small percentage of disputes require formal resolution.

The group supports the right of residents and families to pursue legal remedies for poor and inadequate care, but they shouldn't promote a system that attempts to bankrupt a critical aspect of our health care system.

Mr. Dishon is hoping that public pressure will lead to a ban on the requirement that long-term care patients be forced to use a third party to resolve their disputes. He believes the public has a right to know what happened to Mr. Jinks.

Mr. Jinks is currently living in a memory care center. His kids are happy with his care. Ms. Young said that there was a camera in his room.