OTLA Trial Lawyer Fall 2021

44 Trial Lawyer • Fall 2021 Defeating Arbitration Clauses Continued from p 43 the first place; and what the arbitration agreement does to the community, the resident and the resident’s family. I also include the larger setting of public poli- cy generally — a joint project of the American Arbitration Association, the American Bar Association and the American Medical Association stated “It is worth noting here, however, that the commission’s unanimous view is that in disputes involving patients and/or plan subscribers, binding arbitration should be used only where the parties agree to same after a dispute arises.” 2 Procedural unconscionability The two most important factors here are oppression and surprise. Oppression exists where an inequal- ity of bargaining power results in no real negotiation and an absence of meaning- ful choice. That is undoubtedly present in every licensed care facility case. The facility has superior bargaining power, drafted the agreement and offered it to the weaker party, the resident, on a take- it-or-leave-it basis. There typically are no negotiations. The document usually does not say anywhere that the family is free to not sign the agreement. Surprise is when the supposedly agreed-upon terms of the bargain are hidden. Find out where the facility put the arbitration agreement in the admis- sion paperwork and make sure it pro- duces the entire stack of admission pa- perwork. It is typically a one paragraph/ one page clause on page 22 of one docu- ment buried somewhere in the 162 pages of forms and signatures presented to the family on admission. 3 Tell the story of what happened that led to the admission and how the admission hap- pened. It is almost always a family under duress frantically trying to find an ap- propriate care facility for the medically fragile resident. Most of the time the family and the resident are not able to read and comprehend what they were being asked to sign, nor is there even time to do so during the process. How long would it take you as a lawyer to read and understand 200 pages of legal docu- ments? How long would it take a lay person? How many lay people would even try? The vast majority of families are completely unaware they signed an arbi- tration clause or what that even means. Look for misleading headings. Ask your client if special attention was drawn to the clause. Ask if the family was in- formed it was optional. Because an arbi- tration clause is not the core transaction involved in the contract for medical care or services, it is likely to get even less attention than other parts of the contract. Substantive unconscionability Look for anything that impairs the resident’s ability to vindicate their rights. Who pays the arbitrator’s fees? Does anything create the possibility the plain- tiff may have to pay the arbitrators’ fees and other costs of arbitration that are different than costs they would incur to litigate the case in court? If it is clear on the face of the agreement that the resi- dent would have to pay all or part of the arbitrator’s fees, no showing that the fees are prohibitively expensive is required. However, if it is unclear (it usually is), you’ll need declarations or other evidence that such fees are likely to be prohibi- tively expensive. Your OTLA family can be incredibly helpful in this arena, as can the AAJ Nursing Home Litigation Group —which if you are going to handle these cases as a regular part of your practice, you need to join. Next, look for things that make it harder to litigate — discovery limita- tions, limited time frames, staggered expert disclosures (or even expert disclo- sures at all), prohibitions on certain kinds of claims — like class actions or punitive damages. Each of these things that tilt the playing field toward the defense cre- ate just a little bit more substantive un- conscionability. Pre-dispute confidentiality provisions — also known as a secrecy provision — should get special attention here. Facili- ties love these because they effectively muzzle the family from day one but are typically not enforceable. Such secrecy provisions add to substantive unconscio- nability claims because they seek to limit the resident’s and family’s rights and provide an additional restriction that is outside the normal rules that would ap- ply to a litigant in state court. Conclusion Fighting these clauses takes a lot of work and can involve a multi-step pro- cess, including an immediate right of the facility to appeal the decision to not enforce an arbitration contract. How- ever, the law is mostly good for residents. This is an important part of the fight to protect residents’ rights and hold facilities publicly accountable for the harm they cause. To quote an old aphorism, some- times sunshine is the best medicine, and having these cases heard in open court creates accountability and a public record that arbitrations dodge. Faith Morse specializes in plaintiff ’s per- sonal injury, nursing home abuse and traumatic brain injuries. She is a member of the OTLA Guardians of Civil Justice at the Guardians Club level. Morse is a part- ner at the Andersen Morse & Linthorst, PC, 1730 E McAndrews Rd., Medford, OR 97504. She can be reached at 541- 773-7000 or faith@andersenlaw.com. 1 See Drury v. Assisted Living Concepts, Inc ., 245 Or App 217, 220, 262 P3d 1162, 1164 (2011) for an analysis of this issue. 2 See “ Health Care Due Process Protocol,” Final Report, Section X, B (emphasis in original) July 27, 1998, available at https://www.adr.org/sites/ default/files/document_repository/Healthcare- Due-Process-Protocol.pdf (last visited June 23, 2021). 3 Yes, I actually count every single page of all of the documents presented to the family on ad- mission and provide the court with a list of the document titles. It’s usually at least a page long just to identify those documents. I have also been known to attach all of them to my brief as an exhibit. It’s just an overwhelming amount of paperwork.