For the past few years I have been fortunate enough to focus my practice exclusively on the area of long-term care litigation. Having practiced in this area of medical liability throughout the southeast, I can safely say from experience that Alabama’s law in the area of long-term care litigation, and in medical liability litigation in general, ranks among the most confusing and complex areas of law in the region. Indeed, Alabama’s amalgam of both statutory and common law in the area of medical liability litigation create a quagmire in which an unsuspecting practitioner can easily become entrenched.

The sale of various forms of annuity contracts as retirement and savings vehicles has been around for many years. Originally, Congress was faced with whether or not to include the regulation of annuities as investments under the Securities Act of 1933. Eventually Congress decided that with the wide regulation of insurers and banks for annuities they would be exempt from the 1933 Act.

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.

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.

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.