South Carolina Nursing Home Abuse Claims: What You Need to Know About Arbitration Clauses

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Recently, the editorial board of the The New York Times posted an opinion piece criticizing the frequent use of arbitration clauses in nursing home contracts. Many nursing residents are required to signed agreements containing forced arbitration clauses before they enter the facility. The clauses will have a major impact on any future potential nursing home abuse claim. It is important that victims and their families understand exactly how to navigate these issues. If you have any questions about nursing home abuse claims and binding arbitration, please contact an experienced South Carolina nursing home abuse attorney for immediate legal assistance.

What Is a Residential Agreement?

In South Carolina, most nursing homes will require that prospective residents sign an agreement before they can move into the facility. As an initial matter, it is important to take extreme care when reading over this agreement. Never sign an agreement for yourself, or your family member, without fully understanding the implications of what you are signing. If your loved one already lives in a facility, and you have never read their residential agreement, it is a good practice to request a copy of the contract. These agreements will contain many different provisions, and while most of them are common sense and thoroughly unobjectionable, there are also some provisions that could potentially cause you issues in the future. A binding arbitration clause is one of those provisions. If you are currently reviewing a residential agreement, you should look to see if there is an arbitration clause. Further, you need to understand how that clause will operate in the unfortunate event that legal action is required against the facility.

What Is Arbitration?

Binding arbitration clauses are found in many different types of agreements. Nursing homes residential agreements are far from the only place that you will encounter this issue. Arbitration is a type of alternative dispute resolution. Decisions in arbitrated disputes will ultimately be made by a private third party. While arbitration is actually conducted outside of the traditional South Carolina courtroom, the process itself has many similarities to a mini-trial. There is even an appeal process, although it is a much more limited form of appeal. During the appeal, the decision of the arbitrator will generally be reviewed on narrow grounds.

Nursing Home Arbitration Clauses: Are They Always Actually Binding?

At the most simple level, a binding arbitration is still a contract. South Carolina courts are strongly in favor of upholding the agreed upon terms of any contract. After all, these are supposedly the stated wishes of the parties. Therefore, courts believe that those wishes should be enforced. In reality, it is not always that simple. Not all contracts are enforceable. Disputes over the enforceability of binding arbitration clauses generally fall into one of the following three categories:

  • The agreement was never signed: If the agreement was never signed by any party, then you or your loved one will not be bound by it. A dispute will only arise in this type of case if the facility believe that the residential agreement should have been signed, but for whatever reason simply was not. Still, you should not be bound by something that was never signed.


  • The resident signed the agreement: If the nursing home resident signed the agreement himself or herself, the general rule is that the terms of the agreement will be enforced. However, the standard contract law exceptions still apply to this rule. That means that if the resident did not have the mental capacity to make the contract, at the time the agreement was signed, then the agreement cannot be enforced. While few contracts are ruled unenforceable due to lack of mental capacity, it is not nearly as rare when it comes to disputed nursing home agreements. The fact is that many residents enter the home because of their limited capacity. Proving lack of mental capacity can be a challenge though. It is incumbent on the resident, and their family, to prove that there was a lack of mental capacity. If you believe your loved one signed an agreement without the capacity to do so, you should be speak to an experienced nursing home abuse lawyer as soon as possible.


  • A family member signed the agreement: Many disputes also arise over times when a family member signed the agreement on behalf of their loved one. An agreement can still be enforced in this situation, but it will not always be enforced. The determination will come down to whether or not the family member had the legal authority to make decisions for the  nursing home resident. Once again, if this is an issue in your case, you should seek assistance from an experienced lawyer immediately. Your lawyer can review the situation and help determine whether or not the the agreement was signed by someone who had the actual legal authority to do so.

Arbitration Clause Enforceability: Why Does it Matter?

When possible, it is better to have your loved one’s case go through the traditional court system. Most observers believe that arbitration favors the nursing homes in abuse cases. For example, the public interest organization is actually pushing for legislative change on this very issue. Their stated reasoning is that the nursing facilities are carefully drafting the agreements, while the residents who must sign them do so while there are in a very vulnerable state, therefore, the nursing facilities have far more bargaining power. As a result of this, arbitration clauses are often written in a way that favors nursing home owners and operators. If you are considering legal action in a nursing home abuse case, and the case is facing arbitration, it is imperative that you allow an experienced attorney to review the claim before moving forward in the process.  

Contact an Experienced Charleston Nursing Home Abuse Attorney Today

Our most vulnerable loved ones must be protected from nursing home abuse or neglect. At David Aylor Law Offices, our compassionate nursing home abuse attorneys in Charleston have helped many nursing homes victims recover the compensation they deserve. If your loved one has been a victim, please contact our office today to schedule a fully confidential, and free, review of your claim. Our firm represents victims throughout South Carolina. We have offices in Charleston, Walterboro, Myrtle Beach and North Charleston.

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