Arbitration Clauses in Nursing Home Admission Agreements are they Enforceable

Today when a potential nursing home resident or his or her family seeks a nursing facility to provide the resident 24-hour nursing care, the resident or family is faced with more than the question of which facility to choose or how the resident will pay; the resident or family must also make the choice to waive the resident’s right to a jury trial arising from any future negligent acts of the nursing home.

Arbitration in Insurance Contracts Sept.1998 Montgomery Kiwanis Club

As we all know and acknowledge, Alabama law has consistently disfavored arbitration clauses. Why? Because mandatory arbitration favors large corporations, and because ordinary citizens by submitting to arbitration unknowingly give up their Constitutional right to a trial by jury. This cherished right is one of the few leveling factors between the powerful and the powerless. It is generally recognized that the insurance industry in this country has been the most powerful force insofar as control of government is concerned. Some now say the tobacco industry has become stronger. That claim is subject to serious debate. In any event, insurance bosses exercise tremendous influence over the affairs of government. The present battle over arbitration is a prime example of how an abuse of their power can be detrimental to citizens.

Arbitration in Nursing Home Admission Agreements

Today when a potential nursing home resident or his or her family seeks a nursing facility to provide the resident 24-hour nursing care, the resident or family is sometimes faced with more than the question of which facility to choose or how the resident will pay; the resident or family must also make the choice to waive the resident’s right to a jury trial arising from any future negligent acts of the nursing home. Faced with the choice between immediate medical care and retaining the resident’s right to a jury trial, of course the resident and family are more than eager to do everything necessary to ensure that the resident receives immediate medical care. However, once a resident has been injured by the negligent conduct of a nursing facility, the resident and his or her family are often astonished to find that a clause buried within the resident’s admission agreement will forever prevent the resident from seeking redress in a court of law for any claims against the nursing home, including the wrongful death of a resident.

Avoiding Arbitration and Preserving the Right to Trial by Jury

Arbitration agreements are routinely enforced, and should be, when the parties to the agreement have equal bargaining power and an equal level of sophistication. This is typically the case in commercial transactions among merchants. Such transactions were the ones Congress had in mind when it enacted the Federal Arbitration Act. However, when arbitration clauses are buried in fine print, presented on a “take it or leave it” basis in transactions where bargaining power and sophistication are one-sided, as is typically the case in consumer transactions, then general contract principles require closer scrutiny of the fairness.

Bad Faith Litigation in Alabama Pre Suit Investigation

With perhaps the exception of medical malpractice, no tort action consistently requires as much pre-suit investigation and screening as a potential bad faith case. Most people would never-consider investing their savings in a stock without knowing something about the background of the company. Yet, many lawyers think nothing of investing their scarce time and resources into bad faith cases that have no hope of being successful. In most instances, problems can be avoided by simply conducting an adequate pre-suit investigation into the client's claims. Adequate pre-suit investigation also serves as the cornerstone of any highly successful bad faith case.

Bicycle Helmet Protection Is the Standard Sufficient

Bicycle helmets were first used in the 1880′s, however those early designs were quite different from the vast spectrum of products currently on the market. While the early designs were of the kind that allowed one to fold up the helmet and put it in his back pocket, the modern helmets are much more sophisticated in their design and performance. Although the designs have changed significantly, there has been little change in the bicycle helmet standards used to evaluate the performance of helmets.

Binding Arbitration and its Effect on Consumer Finance Cases

Thomas Jefferson stated that anyone who takes away the right to trial by jury is an “enemy of the state”. Apparently, there are a lot of enemies of the state these days. Almost all consumer finance companies have arbitration agreements buried in their loan documents. Most of the time these clauses are hidden in the fine print of their lengthy documents. Even though the consumers don’t see the arbitration agreements, they are bound by them if they sign the loan documents.

Business Torts - Commercial Litigation Effective Trial Techniques

There has been a marked increase in tort litigation filed both in Federal and State Courts by corporations and other business entities. The types of claims that are being litigated still include, to a limited extent, actions brought under the Federal Antitrust Statutes and other similar federal laws. We are seeing a significant increase, however, in the utilization of state law claims such as interference with business relations or contractual rights, business fraud, and the like. These claims are usually filed in separate lawsuits in State Court, but may also be included in federal actions as pendent state claims.

Common Types of Claims in Long Term Care Facility Malpractice Cases

Over the last decade nursing homes, and to a lesser extent assisted living facilities, have become common and often easily preyed upon targets for litigation. Quite frankly, the plaintiff’s bar was initially very reluctant to invest both the time and resources (especially the money) necessary to aggressively pursue long-term care related litigation. An historical bias that devalued the life of elderly citizens created the false impression that jurors would not award substantial verdicts in litigation involving aged individuals. This callous viewpoint has proven to be a great misconception.

Conditioning the Jury from the Plaintiff's Perspective

All of us have participated in a lawsuit where the amount of the jury's verdict did not measure up to our pretrial evaluation. Needless to say, a result of this sort can come as quite a shock. It is hard to explain this type result to a client who has turned down a substantial settlement offer. In every such case, there is a valid reason for the jury's verdict. The manner in which a case is presented to the jury generally determines whether or not the jurors will meet or exceed your expectations. In every case where the jury's verdict is in the $1,000,000.00 plus range, all jurors must have been properly motivated in that direction. Large verdicts don't just happen. Neither do bad results. We will now explore the conditioning of a jury to return a substantial verdict in a proper case.