Can Dementia Diminish Consent?

Never at a loss for finding innovative ways to avoid liability, nursing homes are now pushing arbitration clauses onto residents. The trend raises some interesting contract law issues. For example,

[One family] hadn’t realized they had signed an arbitration agreement at all . . . . But their six-page admissions contract with the Attala County Nursing Center included a paragraph requiring arbitration. It also said that if the family challenged the agreement in court they would have to pay the home’s legal fees. That type of provision was declared “one-sided” and “oppressive” by the Mississippi Supreme Court last year in a separate lawsuit. But it helped pressure [the] family to accept the arbitration . . . .

A sidebar claims to offer some strategies for dealing with arbitration clauses:

Lawyers say patients should question admissions personnel closely. If an arbitration agreement is mandatory, they say, patients should write on the contract that they’re being given no choice. “Write on the page, ‘I’m signing this, because I was told I have to’ ” for admission, says Cleveland plaintiffs lawyer Blake Dickson, to try to make it easier to challenge an agreement in court.

Even the staunchest advocates of arbitration find these agreements troubling; the “biggest arbitration provider, the American Arbitration Association, frowns on agreements requiring arbitration in disputes over nursing-home care and generally refuses such cases.” What’s particularly ironic here is that much of the same political coalition that moved heaven and earth to respond to the Schiavo situation is behind the limits on lawsuits (and regulatory cutbacks) that make increasing risks of neglect and dehydration of the elderly a far more attractive business strategy.

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