Avoiding Arbitration in Nursing Home Cases
A lot of people probably think you can sue anyone for anything. In Kentucky, and most places, this is not true. As one example, you oftentimes cannot sue a nursing home on behalf of yourself or a loved one if you have signed what is called an Arbitration Agreement. An Arbitration Agreement waives your or your loved one’s Seventh Amendment Constitutional right to trial by jury, meaning your ability to bring a case, or “sue,” in court. Instead, you are only able to have the case arbitrated, a much different and unfavorable process.
What are the main differences between suing in court and arbitration? There are several, and they are typically not favorable to the patient or patient’s family. First, and most importantly, a case in court in Kentucky is decided by a twelve-person jury, of which the patient needs nine of the twelve in their favor to win. A case in arbitration is decided oftentimes by a single arbitrator, or a panel of arbitrators. Second, there is no judge; there is an arbitrator. Judges in Kentucky are elected by the people; arbitrators are appointed to the case and may not even be from Kentucky or familiar with its laws. Third, a case in court in Kentucky is bound by the Kentucky Rules of Civil Procedure, while a case in arbitration is not. The Kentucky Rules of Civil Procedure govern what is called the discovery process, which is the process of obtaining evidence in the case. Discovery under the Rules in Kentucky is broad, with no limits on the number of witnesses, the length of time they can be questioned, or the number of documents you can obtain. In arbitration, however, there are oftentimes limits on witness, timing, and documentation. Generally, those limits work in the favor of the nursing home, not the patient.
So, how do you avoid arbitration? If you or a loved one is ever admitted to a nursing home or short-term rehabilitation facility, you will be given a number of documents to sign at admission. Typically, one of these documents is an Arbitration or Alternative Dispute Resolution Agreement. The simplest way to avoid it is to not sign the document. However, sometimes cases come to us at the Poppe Law Firm where someone did sign the document, but now want to sue in Kentucky courts. There are a limited number of ways around it.
One example of a way around a signed Arbitration Agreement is if the person who signed the Agreement did not have proper legal authority to do so. One common example of this is a person signing as power of attorney where the power of attorney document does not give them the proper authority. In October 2024, the Kentucky Court of Appeals rendered an opinion in the case of Masonic Homes of Kentucky, Inc. v. Estate of Leist, finding that the language in Mr. Leist’s Power of Attorney did not give his son authority to bind him to arbitration. The power of attorney Mr. Leist had granted his son gave him authority generally over “Claims and Litigation,” as well as Mr. Leist’s “property,” but failed to give him authority as to Mr. Leist’s Constitutional rights. Therefore, the Court found, there was no legal authority with which the son could bind his father to arbitration and waive his Seventh Amendment Constitutional right. His case got to proceed in a Kentucky court.