When Hurricane Irma struck south Florida as a category 4 storm in 2017, it caused a widespread power outage that impacted over 6.8 million people. The impact of that outage was devasting for people sweltering in the Florida heat, but those most tragically impacted were nursing home residents in facilities that had failed to ensure they had backup generators in working condition and other safety features that are critical to the health and wellbeing of their residents.

The most egregious loss was the deaths of 12 elderly residents at the Hollywood Hills facility in Broward County. Last month,  the Fourth District Court of Appeals decided that the gross negligence that caused this cascade of death will not be heard by a jury. Hollywood Hills will not have to publicly answer why they failed to have an emergency or evacuation plan or why it took them 3 days to call 911 as the complaint alleged. The victims’ families who entrusted the facility to care for their loved ones, will be denied their constitutional right to seek justice. Instead, the facility will get to quietly arbitrate and the results of that arbitration will more than likely be confidential.

The reason the court ruled against litigation is because of an arbitration clause that was likely embedded in the contract residents signed when they were admitted to the facility. Arbitration clauses are becoming much more commonplace, often buried deep in a bunch of legal jargon that most people don’t understand when the are signing up for services from cell phones to nursing home care.

In the case of Hollywood Hills, the families who lost their loved ones will never have their day in court to get the answers they desperately need for closure. Moreover, the public will never know about the gross negligence that led to this horrific loss of life.

Arbitration is often touted as a swifter way to access justice bypassing the clogged court system. However, the truth is that forced arbitration clauses allow nursing homes to avoid accountability for everything from negligent care to sexual assault.

The American Association for Justice explained it best in a 2019 whitepaper, “Forced arbitration is a rigged system designed by corporations in which injured workers and consumers have no meaningful chance of finding justice. Forced arbitration requires Americans to “agree” to surrender fundamental constitutional rights – often without ever realizing they’ve done so. When corporations harm workers and consumers by cheating, stealing, or even breaking the law, cases that should be heard by a judge or jury are instead funneled into a secret system controlled by the wrongdoers in which there is no right to go to court, no right to a jury, no right to a written record, no right to discovery, no transparency, no legal precedents to follow, no opportunity for group actions when it would be too difficult or costly to file a claim alone, no guarantee of an adjudicator with legal expertise, and no meaningful judicial review. Without such checks and balances, the deck is stacked heavily against workers, patients, and consumers, and systemic misconduct is allowed to continue in secret.”

Sean Domnick, a Shareholder at Domnick Cunningham & Whalen, has been litigating nursing home cases for over 20 years. He has witnessed the horrors of nursing home abuse and neglect and understands the lengths that facilities go through to avoid accountability. He said, “Forcing people to sign away their constitutional rights to hold wrongdoers accountable in courts of law in order to get a loved one into a nursing home is unconscionable.”

So what happens next to the families who lost their loved ones in the Hollywood Hills Rehabilitation Center in 2017? What recourse will they have based on the court’s ruling to deny a jury trial? With forced arbitration, we may never know.

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