Q: When I admitted my Dad to the care facility we signed something that said something about arbitration.

A: Arbitration agreements in nursing home admissions have become increasingly common. The primary reason nursing homes have opted to include arbitration agreements is because they believe that disputes will be resolved more favorably for them. Additionally, since these arbitrations are not filed in court, they are not subject to public record and facilities can keep these disputes privately.

Depending on the individual who signed the agreement and the terms of the agreement, some courts have ruled in favor of families who seek to have these agreements invalidated. If you have concerns about the treatment of a loved one in a nursing home, you will likely want to get the arbitration agreement invalidated. You should speak to an attorney who is familiar with these agreements who can advise you of your options.

A: The law in this area is in flux in most jurisdictions around the country. However, an Illinois Supreme Court case makes it mandatory for all of the heirs of the decedent to have signed the admission documents with the arbitration clause in order for it to be enforced. Therefore, your family would not be barred from bringing civil lawsuit for the wrongful death and not be bound by that arbitration agreement. In most wrongful death/survival actions there are two distinct counts. One count for each cause of action--wrongful death which is an independent cause of action governed by the Illinois statute and the survival action which is also a separate cause of action for the personal injury or pain and suffering experience by the decedent before the death. The wrongful death statute and that count could be filed in the circuit court without having to be arbitrated. The way the Supreme Court's decision I refer to has been interpreted, the survival count would be subject, at least potentially, to arbitration. Naturally much depends on the language in the agreement and the circumstances of the signing of the document and who signed it.

Nursing homes are regularly placing arbitration clauses in admission documents in order to avoid the potential scrutiny of a jury and the much more expensive process and much greater exposure. There is also no record of the proceedings in an arbitration which is yet another reason nursing homes particularly favor enforcing these arbitration clauses. Arbitration is definitely not what a resident who has been harmed, injured or killed by the abuse of the nursing home personnel would want in terms of a forum to prosecute the case.