Arbitration Has Come to Senior Living. You Don’t Have to Sign Up.

The New York Times: Arbitration Has Come to Senior Living. You Don’t Have to Sign Up. (September 24, 2022)

What the Jinks family wanted was to sue the memory care facility where their father, Charles, was attacked by another resident.

After Mr. Jinks recuperated and the family recovered from its shock, they consulted a lawyer. “We wanted Brookdale to be accountable for this,” said his daughter Charlene Jinks Young, 61. “I wanted 12 people” — a jury — “to hear this story.”

But before a court could hear their lawsuit accusing the company of gross negligence, the family had to get past an arbitration clause in Brookdale’s residency agreement. Ms. Young, using her father’s power of attorney, had signed it the day the family moved him in.

It stipulated that in the event of disputes, residents must submit to binding arbitration. A lawyer, not a judge or jury, would rule on their claims, with the parties required to split the proceeding’s costs.

Eric Carlson, directing attorney of the legal advocacy group Justice in Aging, said, “Arbitrators in general are less sympathetic to residents than a jury might be. The nursing home is probably doing business with these arbitrators over and over. They have an incentive to favor the nursing home.”

“It’s a private system with a gag rule, in effect,” Mr. Carlson said. “It’s in society’s interest that these cases not be secret. It’s important public knowledge if something horrific happens in an assisted living facility.”

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