In our previous post, we began looking at the issue of nursing home arbitration agreements and their enforceability. As we began to point out last time, the enforceability of nursing home arbitration agreements is in somewhat of a state of flux, with some states holding such agreements in greater favor than others.
When it comes to wrongful death claims, different states have different rules. Facilities should be aware of the local law and adjust their approach accordingly. Ohio is among a group of states in which nursing home arbitration agreements are not necessarily enforceable against surviving family members. That being said, there is actually a general trend toward enforcing nursing home arbitration agreements.
Fortunately, recent case law supports a presumption that nursing home agreements are enforceable in Ohio, and nursing homes may even be able to bind surviving family members who would otherwise file wrongful death claims in some circumstances.
Nursing home facilities that wish to protect themselves from litigation, of course, should be cautious in how they go about entering into arbitration agreements with residents and their family members. Facilities that wish to protect against litigation from both residents and families members should have separate agreements signed by all parties to ensure the effectiveness of these agreements in court. Failure to do so could leave a facility exposed to litigation.
Facilities should always work with experienced legal counsel to establish policies which protect them from liability, whether that is arbitration agreements or other means of protection, and to effectively defend against claims when they arise.