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Lack of Power of Attorney Used to Defeat Nursing Home Arbitration Clauses

Arbitration agreements have been sneaking their way into all sorts of contracts, from employment contracts to loan agreements. Originally intended to allow businesses or parties to settle complex disputes between themselves more efficiently, many companies have perverted their use so that they can require arbitration whenever anyone at all has a dispute with them, even individual employees or consumers over relatively small amounts of money or in situations where courts are much better suited to resolve the disputes.  The Courts honor freedom of contract principles and allow for enforcement of arbitration agreements so businesses are using them frequently.

Arbitration agreements can have a number of drawbacks for plaintiffs. The first is that they don’t allow class actions, which means individuals with small claims against a company have no way of combining their claims with other people to create one lawsuit large enough to justify the expenses associated with filing a legal complaint.

Arbitration is also private. They are heard and ruled by for-profit companies, not objective judges or juries. Companies that pay for the arbitration, or bring a lot of business to a single arbitrator, are more likely to get a favorable ruling from that arbitrator. There are arbitrators known for their objectivity and fairness, but some corporations retain the right to choose the arbitrator, and when they have the opportunity to choose between one they have a relationship with and one whose ruling may be unpredictable, the company has little motivation to choose the unbiased arbitrator.

Unlike court trials, there is no written decision by the judge and little or no opportunity to appeal the decision. Both parties have to accept the decision, even though they never get an explanation for how the arbitrator came to that conclusion.

Any time a company faces a lawsuit, it’s public knowledge. It’s fairly easy to see how many times an individual or company has been sued, but because arbitration is handled by various private companies, and not the public court system, there is no way of knowing how many times a company has had to defend against a certain claim in arbitration.

Although most people think it’s absurd to uphold arbitration agreements when many of the people signing them didn’t realize what they were giving up, the law makes all contracts binding upon signing.

This is as true for nursing homes as it is for any other industry, but one lawsuit may change all that.

Scott Barrow tried to sue Brandon Woods, the nursing home his 100-year-old mother was staying in when she was found strangled and suffocated with a plastic bag over her head. A police investigation found that Elizabeth Barrow’s 97-year-old roommate, Laura Lundquist, was responsible for the murder.

Because of her age and the fact that she struggled with dementia, delusions, anxiety, depression, and paranoia, Lundquist was deemed unfit for trial and committed to a state hospital.

Six years after the murder, Barrow is still trying to hold the nursing home accountable for his mother’s death. Months before the murder, employees of the nursing home had noted in Lundquist’s patient files that she was at risk for harming herself or someone else.

Because of the arbitration agreement he signed when his mother was admitted to the nursing home, Barrow’s dispute was sent to arbitration. The arbitrator ruled in favor of the nursing home with nothing more than a check next to the nursing home’s name.

Barrow is still fighting to bring the nursing home to justice on his mother’s behalf. When he signed the contract upon her admittance, Mrs. Barrow gave her son the power to make healthcare decisions for her, but she did not give him the power of attorney. Mr. Barrow’s attorneys have been arguing that this distinction invalidates the arbitration agreement Mr. Barrow signed with Brandon Woods.

If Barrow is successful in getting his arbitration agreement with Brandon Woods overturned, it could change the nature of arbitration agreements for nursing homes all over the country.Our Chicago autofraud lawyers near Naperville, Oak Brook and Wheaton bring individual and class actions suits for defective cars with common design defects and auto dealer fraud and other car dealer scams such as selling rebuilt wrecks as certified used cars or misrepresenting a car as being in good condition when it is rebuilt wreck or had the odometer rolled back. We also see cases where new car dealers conceal that the car has been in accident while in their possession or used car dealers who put duck tape in back of the check engine light to conceal serious engine or emission problems.  Super Lawyers has selected our DuPage, Kane, Kendall, Lake, Will and Cook County Illinois auto-fraud, car dealer fraud and lemon law lawyers as among the top 5% in Illinois. We only collect our fee if we win or settle your case. For a free consultation call our Chicago class action lawyers at our toll free number (877) 990-4990 or contact us on the web by clicking here.