Nursing Home Arbitration Agreements in Greenville, SC: What You Signed and Whether It Can Be Challenged

If you have a nursing home negligence or wrongful death claim, you may be surprised when the nursing home presents an arbitration agreement. You may not remember signing it, or someone else may have signed it for you. You may not even know what it is.

Our experienced Greenville nursing home abuse lawyer at Bobby Jones Law explains arbitration agreements in Greenville, SC. Let’s discuss what you signed and if it can be challenged.

What Is an Arbitration Agreement?

An arbitration agreement is a contract between two parties to resolve disputes through arbitration rather than in court. The parties agree that if disputes arise, they waive their right to resolve them in court. Instead, either party may move the dispute to arbitration.

What is arbitration?

Arbitration is a process in which a neutral third party decides a legal dispute outside formal court proceedings. Arbitrators hear summarized evidence and arguments. Traditional court rules don’t apply, and there is no judge.

Nursing home arbitration agreements are usually binding. That means the arbitrator’s decision is final.

Why Nursing Homes Ask Families To Sign Arbitration Agreements

Generally, arbitration agreements are favorable to the nursing home and unfavorable to residents. There are several reasons why:

Lower awards. Arbitration proceedings often result in lower awards than what a jury would award.

Limited discovery. The information that the victim can learn about what happened may be limited.

Confidentiality. Proceedings often remain confidential, so the public may not learn what happened.

Lower costs. Legal costs are usually lower for the nursing home in arbitration proceedings than in court.

Hearsay. Rules of evidence don’t apply, so the nursing home may submit evidence that would otherwise be inadmissible.

Where Arbitration Clauses Hide in Admission Paperwork

Nursing homes like to put arbitration clauses in with other admissions paperwork. That’s to make it look like the arbitration paperwork is required when it isn’t. They may give you a separate arbitration agreement along with many other papers to sign. It may be hidden in fine print or unrelated documentation. They hope that you won’t read carefully. They hope you’ll assume that you must sign.

Are Nursing Home Arbitration Agreements Enforceable in South Carolina?

Arbitration agreements fall under contract law. Parties with legal capacity can enter into contracts. Generally, South Carolina enforces arbitration agreements, but only when they are valid.

Do You Have To Sign One To Be Admitted?

Usually not. You don’t have to sign an arbitration agreement to be admitted to a nursing home in South Carolina. Facilities that accept Medicaid and Medicare cannot require arbitration as a condition of admission. That’s true even if the person being admitted isn’t using Medicaid or Medicare to pay.

If the facility is private pay only, CMS rules don’t apply. But most South Carolina nursing homes accept federal payment programs, so they can’t require arbitration.

Grounds for Challenging a Nursing Home Arbitration Agreement

Common grounds for challenging a nursing home arbitration demand include:

Scope. The claim is not within the scope of the arbitration clause.

Authority. The person who signed the arbitration agreement lacked the authority to do so.

No arbitration agreement. There was no arbitration agreement.

Not signed. The arbitration agreement was not signed.

Unconscionable. The terms of the agreement are extremely unfair.

Not requested. The defense didn’t request arbitration until the last minute.

Fraud. The resident was tricked into signing the agreement.

Duress. The resident didn’t have a choice or alternative.

Statute of limitations. The contract includes an unlawfully shortened statute of limitations, and it’s not severable.

Advice of rights. Federal regulations apply, and the nursing home did not inform the resident of their right not to sign the agreement as a condition of admission.

Rescind. The resident exercised their right to rescind the agreement within 30 days.

Missing requirements. The agreement doesn’t include requirements mandated by CMS regulations, such as providing for the selection of a neutral arbitrator and a convenient venue.

When a Family Member Signs on the Resident’s Behalf

People who enter nursing homes often give power of attorney to others. A power of attorney is a legal document that allows a person to act on someone else’s behalf. There are different authorities that can be granted, such as the power to manage finances or make medical decisions. Basically, the person with the power of attorney acts as the alter ego of the person they’re acting for.

Generally, a person with a valid power of attorney can sign an arbitration agreement. But to be effective, the power of attorney must be properly executed and must grant the agent the power to enter into financial agreements.

In the Stott v. White Oak Manor case, the South Carolina court threw out the defense’s request to compel arbitration. They said that the power of attorney was not effective. South Carolina law requires durable powers of attorney to be recorded. The power of attorney had never been recorded; therefore, the court reasoned, the family member who signed the arbitration agreement didn’t have the power to do so.

In another case, Pace v. Lake Emory Post Acute Care, the South Carolina Department of Social Services (DSS) signed the arbitration agreement on behalf of the resident. The court said that DSS lacked the authority to sign on behalf of the resident.

Can You Revoke an Arbitration Agreement After Signing?

Yes. You have 30 calendar days to revoke an arbitration agreement. After that, you must prove that the arbitration agreement is invalid.

What Happens If the Court Enforces the Agreement

If the court enforces the agreement, you still have the right to bring your dispute. It doesn’t mean that your case is over. It just means that the process is different. You can still receive justice for your claim.

You still have the right to legal representation. A lawyer can help you pursue your case aggressively and effectively in arbitration.

Talk to a Lawyer

If you or a loved one has been injured in a nursing home, we invite you to contact our experienced attorney at Bobby Jones Law. We understand nursing home arbitration agreements in Greenville, SC. We challenge arbitration agreements. We’re taking new cases now.