Agreement to waive jury trial against nursing home may not be a good deal for you

Admitting a member of your family to a nursing home can be stressful. Your grandparent, parent or spouse often needs immediate health care and attention and they can no longer live on their own, or you can no longer care for them in your home.

It’s a trying period of transition marking a loss of independence for the patient and sadness for the family.

Under these circumstances, it’s not easy focusing on the details of the admissions contract. Yet it’s very important that you do so, particularly if the nursing home demands that the patient waive his or her right to a jury trial in the event of a lawsuit resulting from an injury suffered while in its care.

Unfortunately, this is not uncommon. Long-term care facilities often seek to avoid a lawsuit in court by having a patient or their guardian agree to arbitration, which is an out-of-court proceeding to resolve disputes. Arbitration in and of itself can be beneficial, but preserving your right to a jury trial is very important because it leaves that option open should you decide that’s a better route to take for holding a nursing home accountable for negligent care and getting fair damages for injuries caused by the nursing home.

Some courts have ruled that pre-injury agreements to waive a jury trial are unfair and unenforceable – particularly if signing the agreement is necessary to gain admission to the nursing home, or if the waiver is buried in a multi-page contract and isn’t fully explained by the nursing home.

But some courts have upheld these waivers. In my state, for example, the Massachusetts Supreme Judicial Court (SJC) enforced an arbitration agreement between a nursing home and the patient’s son, who was acting as his father’s representative under a durable power of attorney.

In Miller vs. Cotter, the court in upholding the agreement emphasized three main factors specific to the case: the waiver agreement was not a condition of being admitted; it was a two-page document separate from the lengthier admissions contract; and the son had a 30-day period to reject the waiver agreement.

Also, the SJC refused to void the agreement as a matter of law. The court said federal and state law favors agreements to arbitrate, unless they are grossly unfair and one-sided. The court decided that jury-trial waivers as part of the admissions process at nursing homes are not unconscionable under law.

Fortunately, the Miller case doesn’t mean that all jury-trial waiver agreements will be upheld in Massachusetts. In another recent case, Constantino vs. Frechette, the Massachusetts Appeals Court ruled that nurses at a long-term care facility could be sued in court for the wrongful death of a patient, even though the facility and patient had agreed to arbitration. The court said the agreement did not specifically cover individual employees.

Allowing nursing homes to avoid jury trials before an injury occurs is arguably a bad public policy. Each injured person’s situation is different. They should have the choice of assessing whether it’s better to have a jury decide the negligence of a nursing home and what damages an injured person should receive, or whether it’s better to have an arbitrator resolve those issues.

Additionally, court rules often give the nursing home resident a better chance to prepare for trial by forcing the nursing home to turn over critical information. Arbitration rules, on the other hand, can favor the nursing home because they don’t always allow for as much investigation and discovery. An intelligent assessment of these factors can’t be made before the injury even occurs, or before the resident ever gets advice from a nursing home negligence lawyer.

A potential problem for health care consumers following a decision like the SJC’s ruling in the Cotter case is that other health care providers might start demanding jury-trial waivers. What’s to stop a hospital emergency room from making treatment available only if a patient agrees to arbitration in the event of malpractice? Or what if HMOs or primary care physicians start demanding jury waivers?

Even if medical treatment isn’t conditioned on signing an arbitration agreement, is it reasonable to assume most patients will even understand the full implications of waiving their right to a jury trial – especially when they are more focused on the illness or injury that brought them to the emergency room or their doctor’s office?

Bottom line: If you face having to admit a member of your family into a nursing home, it’s important to take the time to understand what’s in the admissions contract, including any provision requiring you to waive your right to a jury trial pre-injury.