OTLA Trial Lawyer Fall 2021

46 Trial Lawyer • Fall 2021 they signed them. Like this client, they often didn’t appreciate the implications of an agreement to arbitrate because they didn’t foresee the facility abusing or ne- glecting their loved ones. And in the last decade, the debate over arbitration clauses in facilities has been hotly de- bated, so it’s been hard to consistently educate care facility residents about their rights. As of now, those rights are clear. Since 2017, residents have the right “to be free of any written contract or agreement language with the facility that purports to waive their rights or the facility’s liabil- ity for negligence.” And as of 2019, Medicare rules explicitly say pre-dispute mandatory binding arbitration clauses cannot be a condition of admission and facilities must “explicitly inform” the resident or his or her representative of the right not to sign the agreement as a term of admission. Facilities must also ensure the agreement is explained in a form and manner the resident under- stands, including in a language the resident and their representative under- stands. Out of public view If this family member hadn’t found me within 90 days — and most often they don’t — we would have been stuck with what she signed. And all the ail- ments of a private dispute resolution would follow. No public trial, no op- portunity for a group of lay people to hear about what happened and decide what compensation her husband deserves based on consensus of social opinion. Not to mention that private arbitration almost always favors the corporate defen- dant, the facility. Her claim on behalf of her abused husband would have been shoved behind closed doors without the chance to be part of a greater conversa- tion about the ubiquitousness of elder abuse and neglect by professionals in care settings. Savvy consumers wouldn’t ever know the facility had a track record of being sued, and the media, if and when it gets more interested in tracking the impact of elder abuse and neglect, would never report on the case. The claimwould never be given the opportunity to chal- lenge outdated public laws, like the wrongful death cap or the abuse of a vulnerable victim statute (ORS 124.100 et seq) because arbitrations are binding with no opportunity for appeal. Educate the public Our task is to educate potential resi- dents and their families to fully consider what they’re signing and how to politely decline to sign binding arbitration agree- ments. If there’s some hesitation in not signing, remember, nothing prevents them from making an agreement to ar- bitrate after the nature of the dispute is well known, and an attorney advocate has fully advised the person on the pros and cons of arbitration versus trial. Avoiding the Fight Continued from p 45