Arbitration & Mediation

Wall Street Journal Slams Nursing Home Arbitration

By Christopher B. Hopkins, Esq.

In a well-researched but decidedly slanted piece, the Wall Street Journal ran a front page article on Friday, April 11 entitled, "Nursing Homes, in Bid to Cut Costs, Prod Patients to Forego Lawsuits."

To see the full article, you need to log in for a trial online subscription. Article is here. Also of interest is a summary of the article and reader responses on the paper's blog, here.

The Journal took the position that, while 1/3rd of businesses and 1/5 of employers use arbitration clauses, the nursing home industry is "slicing the number of patients winning big punitives judgments" through arbitration.

Examples given were two cases where the plaintiff/family either won a five-figure sum or, in another case, they lost. The suggestion was that arbitrators are not as "passionate" as juries. A Florida arbitrator was quoted in a way that suggested he (as a former defense lawyer) was himself keeping awards low. We wonder (a) if that's an accurate quote and (b) if that's going to impact his business.

Of note, the article discusses the Florida case of Estate of Kirshner v. Bright Horizons which we've mentioned here on this site, including providing the arbitrator's detailed award setting out the grounds for the decision. Notably, when you take a case to trial, lawyers and parties may not necessarily have the benefit of knowing why a jury did whatever it did. In Kirshner, the arbitrator went to fairly lengthy pains to explain the ruling. That said, the Journal seemed to dismissively suggest that the arbitration forum, and therefore the outcome, was tilted to the defense. Read the Kirshner award and decide for yourself.

Nonetheless, it is worth noting that arbitration is important enough to make the front page of the WSJ...

Caveat: Christopher Hopkins and Allison Bernstein of this site were the lawyers in Kirshner.

Full post as published by Florida Arbitration Law on April 16, 2008 (boomark / email).