If your elderly loved one dies while they are staying in a nursing home, can you sue the home for wrongful death?

Maybe, maybe not—it all depends on what you signed when they were first admitted.

A decision recently handed down by the Supreme Court has reinforced the ruling that nursing homes can include special passages—called "binding arbitration clauses"—in their contracts with residents to limit their chances of being taken to court.

Banned from the courtroom

Binding arbitration clauses are fixtures in contracts of all kinds, and serve to prevent the person who is signing the document from suing the contractor in a court of law.

Instead of being able to initiate a lawsuit, a person who signs a binding arbitration agreement must allow the conflict to be disputed and resolved through arbitration—a process where arguments are heard and judgment passed by specially trained and licensed individuals, called arbitrators.

Sarah Polinsky, J.D., an expert in the fields of elder law and estate planning, says that binding arbitration clauses are generally included in nursing home contracts to help make the conflict resolution process faster and cheaper.

But, in the case of nursing home disputes, the rapid and less-costly nature of arbitration usually favors corporations—not caregivers.

What you're giving up

Consenting to have future disputes with your elderly loved one's nursing home decided by arbitration means that a caregiver is forfeiting some of their constitutional rights.

There are two main differences between arbitration and litigation, according to Polinsky. With arbitration, there will be no:

  1. Public record of the dispute
  2. Trial, and no jury of peers to hear arguments and decide on an issue

And, unlike other types of arbitration, binding arbitration judgments cannot be appealed in court.

Even if a caregiver suspects that something the nursing home did (or didn't do) resulted in their loved one's injury, or death, they won't be able to sue the home for it.

Read carefully, then sign

When you're trying to get an ailing loved one into a nursing home, deciphering complicated legal diction isn't likely to be topping your to-do list.

"There's a fear, and the knee-jerk reaction is to sign whatever you're given to get an elderly loved one placed as soon as possible," Polinsky says.

But, even in times of extreme stress, a caregiver needs to pay attention to what they are signing.

That's why Polinsky recommends taking any legal documents home, where they can be reviewed in a calmer setting, before you sign on the dotted line.

Two critical pieces of advice for caregivers:

  1. Make sure you aren't personally binding yourself to any financial responsibility. Sometimes, nursing homes may try to get a caregiver to become a "responsible party." In most cases this means that the caregiver will be responsible for their loved one's nursing home expenses. Caregivers should avoid signing these kinds of agreements as federal law prevents nursing homes from requiring such commitments.
  2. If there's something in the contract that you don't understand, make note of it and ask the nursing home to explain it to you. Or contact an elder law attorney before you sign.

And remember—even when you feel pressured by time, finances, or nursing home staff members—you always have options.

If you don't feel comfortable with the document you're being asked to sign, Polinsky says, "A caregiver needs to have the wherewithal, even during that stressful time, to say that they will not sign the contract."