The American Association for Justice, which lobbies on behalf of plaintiffs lawyers, won a small victory last month in the long war over mandatory arbitration. Congress banned defense contractors from including in their employment contracts any provisions that require arbitration — clearing the way for more employment disputes to be taken to court.
Today, the group's top lobbyist said it's time to do the same for contracts between nursing homes and patients.
Linda Lipsen, the executive vice president for public affairs, was speaking at the American Association for Justice’s headquarters about its 2010 agenda in Congress. Asked whether it plans to fight mandatory arbitration broadly or industry-by-industry, Lipsen said the group wants Congress to pass the Arbitration Fairness Act of 2009 this year. The act would ban mandatory arbitration in all consumer and employment disputes. But Lipsen quickly singled out the nursing home industry as the likely centerpiece of the group’s push.
“When you bring your mother to the only nursing home in your area, and you’re looking at a 500-page document… you’re going to sign whatever it is you have to sign to get your mother into that home,” Lipsen said.
Bills to prohibit such provisions in nursing home contracts have been introduced in the House and Senate. They did not receive votes in 2009.
The change for defense contractors got traction in the fall when Sen. Al Franken (D-Minn.) highlighted the case of Jamie Leigh Jones, a former employee of defense contractor Kellogg Brown & Root who reported being raped by her coworkers in Iraq. Nursing homes, Lipsen said, invoke similarly strong emotions. “There are a lot of stories connected to forced arbitration similar to the Jamie Leigh Jones story,” she said.
Also at the top of the plaintiffs bar’s legislative agenda is opening up state courts to torts over medical devices and reversing two U.S. Supreme Court decisions since 2007 that have changed the standard for filing most civil lawsuits. Democrats have held hearings on both those issues.
Nursing homes as easy (soft) targets is nothing new in Texas. In the late80's and 90's almost any claim resulted in a significant settlement, in order to protect the carrier against unbelievable verdicts. Part of this was because of a very public attack that Kay Bailey Hutchinson made at that time on the evils of nursing homes. Several of the larger carriers exited the field here in texas. defense of suits was almost impossible.
The plaintiff bar doesn't, and never will, want binding arbitration. Hard to figure out why, isn't it?
Posted by: Leo criep | January 14, 2010 at 09:35 AM
Arbitration agreements infuriate plaintiffs lawyers because it disables the trial lawyer's ability to 'bully' the defendant. If a plaintiff can bring a claim and has full access to insurance policy limits (generally $1 mil per incident/$3 mil aggregate) it reduces the time to resolve the issue and gets settlement funds to the plaintiff faster. Problem here is, trial lawyers feel they are being squeezed out of what has traditionally been nice work on commission (AKA contingency fee). Bottomline, arbitration will never go away. As a matter of public policy it should not be curtailed by the trial lawyers lobby who are considered to be (by most) the bottom feeders in an otherwise distinguished profession.
Posted by: Love Arbitration | January 12, 2010 at 07:32 PM