On March 27, 2012, we posted about Marmet Health Care Center, Inc. v. Brown, 565 U.S. ___ (2012). Marmet Health, a Supreme Court case, concluded the Federal Arbitration Act does pre-empt the state public policy of West Virginia against predispute arbitration agreements applying to personal injury or wrongful death claims against nursing homes. So if you check Mom or Dad into a nursing home, and an arbitration clause is signed, Mom or Dad can generally be compelled to arbitrate (unless the clause is found to be unconscionable for reasons other than that it offends a pre-empted state policy against such clauses).
A September 18, 2012 article by Michelle Andrews on the National Public Radio website points out many such arbitration clauses have “opt-out” agreements giving the party additional time to back out of the arbitration agreement. It’s good business, because if the arbitration agreement is not “take it or leave it”, it is more likely to be enforceable. Consumer advocates, however, advise against signing the arbitration agreement, arguing arbitration results in additional costs, and results in smaller awards for plaintiffs.
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