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Nursing homes, malpractice and forced arbitration: a discussion

Among the biggest fears that many patients across California and the rest of the country have regarding hospital admittance is that they might become the victim of medical malpractice.

Although some people might view such a concern as being unfounded and even alarmist, the underlying facts that justify that fear speak loudly and clearly in support of it.

As we note on the Medical Malpractice page of our website at the Ventura County law firm of Vititoe Law Group, LLC, malpractice acts and omissions are "the third leading cause of death in the United States."

One material -- and, by some people, sometimes forgotten -- source contributing to medical negligence and harm is the nursing care industry and its many thousands of individual homes that dot the country.

That industry is destined to become a progressively larger concern over time, notes an article addressing a number of hot-button nursing home topics, because of the burgeoning population marked by elder people nationally.

With more nursing home residents coming, it is argued, it becomes increasingly important "to ensure that residents are protected from abuse and neglect."

One factor that undermines that goal, states the article, is the increasing frequency in which home officials are insisting upon having signed agreements with arbitration clauses embedded in hand as a condition for a resident's admission.

Arbitration forced upon a home resident seeking to air and resolve a serious grievance "is a problem," notes the media piece, for many reasons. Court rules do not apply. Outcomes are often, by design, shielded from public knowledge, with confidentially restrictions being placed upon plaintiffs.

A strong juxtaposition is offered by a California class action court case that was settled several years ago involving about 32,000 current and ex-residents of one state facility. The general public was privy to the details of that settlement, which resulted in a strong monetary win for the plaintiffs and important safety-enhancing dictates imposed upon the defendant.

The benefits of a court-overseen litigation process are not equally realized when arbitration is the sole avenue available to an injured home resident for bringing and resolving a health-related dispute.

The Center for Medicare and Medicaid Services is currently seeking public feedback on whether binding arbitration in nursing home malpractice cases should be disallowed.

The imposition of a prohibition on such agreements is something that is certainly worth thinking about.

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