On June 29, 2011, the West Virginia Supreme Court in Brown vs. Genesis a case involving three deaths suffered at three separate nursing homes ruled on whether arbitration clauses, which were part of the nursing home admission agreement, should be enforced where there were acts of negligence. What would normally happen is someone would be admitted to a nursing home and the person or someone on their behalf would sign this admission agreement. Deep in the pages and pages of documentation was a binding arbitration agreement. That arbitration agreement was under the Federal Arbitration Act and claimed that if someone was injured through the negligence of a nursing home, that the person did not have the right to go through a civil jury trial, but it would have to be handled through arbitration.
The West Virginia Supreme Court wisely found a huge disparity existed in bargaining and negotiation. If someone gets put in a nursing home, they don’t read a 40-page document, and you should not be able to contract away your rights to receive proper care in a nursing home. Most people in a nursing home, their families are unaware that there was a mandatory binding arbitration agreement buried in the small print of the admission paperwork.
The West Virginia Supreme Court said “We therefore hold that, as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence.” The West Virginia Supreme Court issued a 99-page ruling arguments were heavily briefed and litigated by attorneys which litigation nursing home cases. Justice Ketchum delivered the opinion of the court, Justice Davis disqualified herself, as did Justice Benjamin, and Judge Gaudot was sitting in on temporary assignment in this case.
The West Virginia Supreme Court in its opinion said “Congress did not intend for arbitration agreements, adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, and which require questions about the negligence to be submitted to arbitration, to be governed by the Federal Arbitration Act.” This case is an example where there has been a concerted effort by the insurance industry and corporations to take away a person’s right to a jury trial. The last bastion of security we have under our Constitution of the United States in West Virginia is a right to have our grievances heard in a jury trial. Most insurance companies and corporations are constantly everyday battling to take away this right for you. They do this several ways. 1) They lobby the legislature and convince the legislature that things should not be decided by a jury trial. 2) They argue in the court systems that cases should not be decided by a jury trial, and finally, 3) they put language in the contracts, they put the language into the nursing home admission forms and in a plethora of forms, saying that you give up the right to a jury trial.
There are simple reason insurance companies and corporations do not want a citizen to have access to a jury trial. This is because jury trials are one place where an individual has a right to speak and present their case, and citizens in the community can decide if the person was harmed, and if it was a violation of the law, what should be the outcome. If they control the court systems, the legislature, and control all avenues, then the “little man” will not have access to justice, and that is the effort that the insurance companies are consistently making. In the end, their goal, if you’re not an insurance company, corporation, or a large business, you have no right to seek out a redress for the harm that you have suffered.
This decision of the West Virginia Supreme Court is consistent with the federal law concerning arbitration agreements and is inconsistent with the Federal Arbitration Act. It also supports their right of an individual to bring a civil action if they have been wronged, or if one of their loved ones, through the negligence of someone else, has resulted in them suffering and dying.
If you know somebody that has been in a nursing home and they haven’t received proper care or attention, you need to seek out an attorney that is familiar with the federal and state regulations regarding nursing homes and the care that they receive. We are all more than likely going to end up in the nursing home some day. Therefore, it is important that we are vigilant to make sure that the nursing homes provide adequate care for the people that we love. The people who are placed into a nursing home do not suffer abuse, do not suffer mistreatment, and have the dignity to receive proper care.