No Arbitration in Nurisng Homes Cases In Illinois

Billy Cunningham

Attorney
(866) 735-1102 Ext 676

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In the case of SSC Odin Operating Co. v. Carter, Sue Carter the U. S. Supreme Court on June 1, 2009 by refusing to review an Illinois appellate court ruling, has tacitly agreed that a state law nullifying nursing home arbitration agreements supersedes the Federal Arbitration Act which favors arbitration agreements. This may be another chink in the arbitration armor used by nursing homes to force residents and their families to give up their rights to a jury trial.

The state legislature of Illinois had the wisdom to recognize that arbitration clauses in nursing home contracts are unconscionable and passed the Illinois Nursing Home Care Act (NCHA) which has provisions prohibiting the facility from enforcing an arbitration agreement. Apparently, despite the law, Odin Healthcare Center in Odin, Illinois required Joyce Gott to sign an arbitration agreement agreeing that in event she or her family wanted to pursue a claim against the nursing home there would no trial but instead the dispute would be decided by arbitration.. Her family recognizing that the legislature prohibited such agreements filed a wrongful death claim in state court. The nursing home operator asked the trial court to enforce the arbitration agreement and argued that the Federal Arbitration Act should overrule any state law governing arbitration agreements, especially in light of the fact that the NHCA applies to nursing home contracts in a broad and more generalized way, rather than specifically singling out arbitration agreements. A state appellate court ruled that the NCHA applied and struck down the arbitration clause. The Illinois Supreme Court refused to review the decision in October of last year. With its refusal to hear the case, the U.S. Supreme Court has let the lower court's ruling stand, thereby setting a precedent under which other states' laws might trump the Federal Arbitration Act.

The failure of the Supreme Court to consider this case should give those of us who believe the right to a jury trial is right granted to us under the constitution, have family members in a nursing home and/or who represent nursing home residents cause to rejoice. This is the way it should be. As I have written numerous times in blogs on InjuryBoard, arbitration is just not designed for consumer situations and most especially should not apply to the elderly in nursing homes. We have opportunities to use this ruling to show other sates how it can be done and to urge Congress to get the Fairness in Nursing Home Arbitration Act passed.