Health Care Arbitration Agreements: Five Ways to Improve Enforceability
Common law judicial doctrines in almost every state discourage and restrict arbitration agreements covering personal injury or death claims, write Manton G. Grier and Marcus A. Manos of Nexsen Pruet. They see this point particularly regarding admission contracts to nursing homes or assisted-living facilities, which have superior bargaining power and may offer services on a “take it or leave it” basis. The Federal Arbitration Act (FAA), on the other hand, encourages arbitration of claims.
“Because the arbitration laws stack the deck against a facility, there is no foolproof way to draft an arbitration agreement; what may be found enforceable by one judge may be found unenforceable by another,” they write. “With so many defenses available to plaintiffs, a bullet-proof agreement just doesn’t exist. Nevertheless, there are five ways a facility can improve the odds that a court will enforce the agreement.”
