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Rule change underscores concern with nursing home arbitration

We note the concerns that family members often have associated with the need for select loved ones to spend time in nursing homes and the fate that might befall them in such locales.

We say that in frank and unsentimental terms, knowing that, notwithstanding the top-notch care that many elderly persons receive in some nursing facilities in Colorado and nationally, a similar outcome does not routinely prevail.

In fact, home residents suffer serious and fatal accidents and injuries in large numbers in American nursing homes, making such venues obvious targets of scrutiny and close regulatory oversight.

One central reason for that, as we note on a page of our website discussing nursing home injuries and wrongful death at the Colorado personal injury law firm of Vance & Larson, is that, "Most nursing injuries are the direct result of negligence."

That concern with careless medical care delivery and services has resulted in a strong spotlight being placed on the care industry's long-time and notably preferred practice of forcing prospective residents to waive their rights to a trial in the event they suffer from negligent treatment at a facility. Many nursing home patients have been forced to sign mandatory arbitration agreements as a prerequisite to gaining admittance to a nursing home.

Although the care industry justifies that practice on the grounds that it helps keep costs reasonably contained and enables homes to stay open that might otherwise close down due to the costs of formal litigation, opponents of mandatory arbitration ridicule any such argument.

They counter instead, as noted in a recent New York Times article, that arbitration "keeps embarrassing practices under wraps" and unfairly deprives many would-be plaintiffs from having their day in court.

The federal Centers for Medicare and Medicaid Services seems flatly influenced by that latter reasoning. The agency recently announced that, come this November, no facility in the country that takes federal funds will be allowed to force an arbitration clause on residents.

As the Times points out, the center's ruling could be challenged in court. If it isn't, though, or if prevails in any contest, the landscape surrounding nursing home injuries and resulting legal action could be fundamentally changed.

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