In 2016, the federal government made it easier for nursing home residents to take legal action against facilities that were accused of negligence. Recently proposed changes could have the opposite effect. If your loved one is considering legal action against a nursing home, here is what you need to know.
Can You File a Lawsuit?
The action taken by the Department of Health and Human Services in 2016 made it easier to file a lawsuit against negligent nursing homes and staff. The rule issued by the agency was directed at a practice by nursing homes of including an arbitration clause in resident agreements. Arbitration is more challenging to win and many people were left without compensation for nursing home injuries.
In 2017, a new rule was proposed that would force new residents of nursing homes to agree to arbitration. If the residents refuse, they could be denied admission. As part of the rule, nursing homes would be required to explain the arbitration clause to the residents in plain language.
What Could This Mean for Your Loved One?
The new rule could have a significant impact on whether your loved one can receive compensation for injuries. Arbitration involves choosing an arbitrator who would hear testimony and review evidence that is presented by both sides. The arbitration would then determine whether the nursing home is liable.
Although it might seem close to what would happen in a courtroom, there are some drawbacks to arbitration. For instance, there is a concern that the arbitrator might not be as neutral as he or she should be. Arbitration also is considered a final judgment. Regardless of the outcome, neither party can file a lawsuit in court to challenge an arbitrator's decision. If your loved one loses, he or she will have no further legal options available to hold the nursing home accountable.
How Can You Prepare for Arbitration?
If the rule is passed, it is important that your loved one is prepared to present his or her case. When preparing, remember that the arbitrator needs to be overwhelmed with the amount of evidence showing the nursing home's negligence.
Evidence, including witness statements from other residents and medical records from injuries, matters. If there has not been an investigation by the state's adult protection agency, report the nursing home. If the agency finds that the nursing home was negligent, this will help your loved one's case.
As soon as possible, get a personal injury lawyer involved. If the new rule has taken effect, he or she can help with assessing your loved one's case and determining how to proceed.