Written By Chris Dolan and Cristina Garcia
This week’s question comes from Shannon B. from the Sunset District, who asks: A few months ago, my family and I made the difficult decision of placing my elderly mother, who suffers from Alzheimer’s, in a nursing facility. At the time of admission, I received a lot of documents and was asked to sign all the forms as it was part of the admission process. I did not realize that within that stack of papers, there was an arbitration agreement, which I signed. I thought signing the agreement was a requirement for admission, as no one informed me otherwise. Two months ago, we learned that my elderly mother had been sexually assaulted at the facility by another resident. My family and I want to bring a civil lawsuit against them. However, the facility is saying that we are barred from filing a lawsuit because we signed the arbitration agreement. We are disturbed by the incident and would like to know our options. Is signing an arbitration agreement a requirement for admission? Does this mean we cannot file a civil lawsuit?
Dear Shannon, I am sorry to hear about this horrific situation. When families make the difficult decision to place their loved ones in a nursing home, they expect a safe and caring environment for their loved ones. However, that is not always the reality. Many nursing homes present families with a stack of documents, including arbitration agreements, that are often buried within the admission paperwork. Due to the delicate nature of admitting a loved one into a facility, the families may feel coerced into signing the arbitration agreement or may not have sufficient time to understand its implications. By signing an arbitration agreement, the families agree to resolve any disputes that arise by an arbitrator, a neutral party tasked with assisting the parties to resolve the case. However, that does not mean that they will follow traditional legal procedures. In arbitration, the rules are more flexible and can be more limiting than in a court of law. Notably, the most significant difference between arbitration and civil litigation is that your case will not be heard by a panel of 12 jurors. It will only be heard and determined by an arbitrator.
After signing an arbitration agreement, you are bound to arbitrate disputes that arise through arbitration, with some limited exceptions. There are strict requirements the nursing facility must follow to meet the statutory requirements of a valid agreement.
- First, a nursing facility cannot force a resident to sign an arbitration agreement as a condition of admission or medical treatment. Therefore, it must contain the following advisory in a noticeable place at the top of the proposed arbitration agreement, in bold-face font of not less than 12-point type: “Residents shall not be required to sign this arbitration agreement as a condition of admission to this facility.” (Cal. Code of Regulations, Title 22 § 72516(d).)
- Second, an arbitration agreement cannot be buried in a lengthy admission contract. It must be on a form separate from the admission agreement and contain a space for the residents’ signature. (Health & Safety Code, § 1599.81(b).)
- Third, immediately before the signature line, the nursing facility must include the following in bold red type: “Notice: By signing this contract you are agreeing to have any issue of medical malpractice decided by neutral arbitration and you are giving up your right to a jury or court trial. See Article 1 of this Contract.” (Code of Civil Procedure § 1295(b).) Therefore, it is important to review the signed arbitration agreement to determine whether the facility met the statutory requirements. Otherwise, a court may decide that the agreement is not valid.
Another critical note for residents or family members who have signed an arbitration agreement within the last 30 days is that nursing home residents can rescind an arbitration agreement by giving written notice to the facility within 30 days of their signature. Unfortunately, the 30-day rescission notice would not apply to your mother’s case as it’s been a few months since her admission. However, on March 3, 2022, President Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (“EFAA”). The act makes it clear that claims of sexual assault and sexual harassment cannot be forced into arbitration. Therefore, under the new act, your mother may be able to file a civil lawsuit for her claim.
Sexual Assault cases against nursing facilities are complex. We recommend that you retain an experienced attorney to assist you in navigating the process and obtaining justice for your loved one.
