That's a problem, a number of lawmakers say, and they're pushing legislation to make such agreements unenforceable.
The nursing homes say the arbitration arrangements that many families agree to actually lead to dispute resolutions that are more fair than court cases. Lawmakers, however, urged on by consumer advocacy groups and trial lawyers, say families shouldn't be giving away their ability to hold the homes accountable for poor care.
A Senate committee will hear on Wednesday from the family of William Kurth, who fractured his hip and leg and contracted numerous pressure ulcers during his final months of life in a Wisconsin nursing home. When his family attempted to sue for negligence, a judge dismissed the case because Kurth's wife had agreed, as part of her husband's admission, to have all complaints go through an arbitrator.
The Senate panel, which is investigating the growing use of binding arbitration by nursing homes, says more than 100 lawsuits have been filed in the past five years challenging such agreements.
Arbitrators take into account federal, state and county laws when resolving legal disputes. Often, the parties are free to negotiate some of the ground rules for their case. The process has the advantage of being, faster and less expensive for both parties. It also is confidential.
However, few families are even thinking about the possibility that they might want to go to court when they admit their loved ones to nursing homes.
Kurth's wife, Elaine, was under extreme duress and on medication when she signed the papers that allowed her husband, a stroke victim, to stay at the nursing home, said Jason Studinski, the family's attorney.
"It was one of the most stressful days of her life," Studinski said. "She would have never signed away her right to a trial by jury if she knew what she was doing."
Members of the Kurth family who will appear before Congress say their father, a World War II veteran, died at age 84 from infections that occurred because excrement and urine were not cleansed from his bedsores for days at a time. David Kurth of Burlington, Wis., says arbitration has become a shield for large corporations to hide behind and decrease the quality of care.
"It is economically more profitable to let people like my father suffer than to provide proper care," said Kurth in written testimony provided to The Associated Press. "And now that our family is trying to hold the nursing home corporation accountable for its actions, Kindredcare is trying to bury our case by forcing us into a mandatory, secret, and binding arbitration process that they chose."
Kindred Healthcare, based in Louisville, Ky., said it would not comment specifically on the Kurth case. But it noted a judge's decision that found the arbitration agreement was optional and not a condition for admission.
"The Kurth family has been represented by counsel throughout this proceeding and may pursue their claim under the provisions of Kindred's Alternative Dispute Resolution program should they choose to do so," the company said via e-mail. "We look forward to a prompt and mutually acceptable resolution of the case."
The company said the arbitration program was designed to achieve several goals, including prompt resolution of legal disputes and lower costs to both residents and their families.
Lawmakers don't want to preclude binding arbitration as an option, said Sen. Herb Kohl, D-Wis., and chairman of the Senate Aging Committee. But the decision has to be made by both parties after a dispute occurs.
"Many incoming residents lack the capacity to make even simple decisions, much less judge the legal significance of an arbitration agreement," Kohl said. "Most are unaware that they are signing away their right to go to court."
The nursing home industry emphasizes that arbitration is voluntarily agreed to and not a condition for admission. Also, nursing homes say, the process is typically quicker than a court case, so agreements can be reached while the patient can still take advantage of compensation.
Bruce Yarwood, president of the American Health Care Association, said lawsuits were driving nursing homes out of some states in the late 1990s and early 2000s, particularly Florida. He also said that jury trials can be stacked against the industry because people are inclined to want someone to pay if a mom or grandmother got hurt, even if the nursing home isn't responsible for the injury.
"What we find is that when you get into a court structure, it's not necessarily an unbiased structure," Yarwood said. "What we're looking at is something that's a lot more fair."
Groups including AARP and the Alzheimer's Association support legislation, sponsored by Sen. Mel Martinez, R-Fla., that would make arbitration agreements for nursing home patients unenforceable.
Stephen Ware, a professor of law at Kansas University, urged lawmakers in his written testimony to refrain from banning arbitration for nursing homes. He said lower legal expenses can increase access to justice, especially in smaller cases where it can be difficult to attract a lawyer. Also, lower legal expenses can benefit others to the extent that a nursing home's costs are ultimately paid for by residents and their families, or by taxpayers.
In some cases, the Federal Arbitration Act allows courts to invalidate unconscionable arbitration agreements, Ware notes.
"And this is not just a theoretical protection," he said. "Each year, there are many cases in which courts hold particular arbitration agreements unconscionable. Among these are cases involving nursing homes."