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I signed admittance papers to nursing home (shoved under my face) with "arbitration clause" I only had a healthcare proxy and

Rutherford, NJ |

not a "power of attorney" for my late
mother's admission to nursing home. Consulted an attorney to file "wrongful
death" suit for negligence. Do I still
have a chance? Or does the "arbitration
clause" null any such action?

Attorney Answers 4

Posted

I don't know what the arbitration clause says, but I would doubt that it would be applicable to a wrongful death lawsuit.

Good luck to you.

Michael S. Haber is a New York attorney. As such, his responses to posted inquiries, such as the one above, are limited to his understanding of law in the jurisdiction in which he practices and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.

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Posted

There are several different questions here beyond the one you mention. The arbitration clause might not be legally permissible in nursing home contracts, or in this type of contract, or in this particular situation. As noted above, the contract as written, even if validly written and validly signed, might not cover negligence or wrongful death claims. You said you consulted an attorney; if they are the type of attorney that handles personal injury or medical malpractice, I can't understand why you are writing here. If that attorney didn't want your case, find one who does, and that attorney can look at the contract and give you a definitive answer.

Attorney Rosenberg is admitted to practice in Connecticut and Massachusetts, and currently practices in South-Central Connecticut with an emphasis on estate planning, elder law, probate, and tax matters. He may be contacted confidentially by email at Scott@ScottRosenbergLaw.com or by phone at (203) 871-3830. All correspondence through this website appears publicly, is not confidential, and does not create an attorney-client relationship between you and Atty. Rosenberg. Discretion should always be employed when posting personal information online. ~~~~~~~~~~~~~ All online content provided by Atty. Rosenberg on this and other websites is provided for general informational purposes only, and does not constitute legal advice. All content is general in nature. Attorneys are unable to ask the questions necessary to fully understand the legal issues faced by any particular poster. Postings and responses to questions only provide general insights on the topic discussed. They are not tailored to any reader’s specific situation, will not be accurate in all states, and are never updated or maintained to reflect changes in the law. No person should take action based on the information provided by anyone on Avvo.com or any other law-themed website without first consulting a local attorney with significant experience in your area of concern. Persuant to Circular 230, no online content may be used by any person to avoid taxes or penalties under the Internal Revenue Code.

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Posted

While I am not familiar with NJ law, I agree that an arbitration clause normally would not preclude you filing a wrongful death action. Your attorney should be able to answer that question for you as the answer will depend on what the clause says and what NJ law provides. Good luck.

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Posted

I would need to see the arbitration clause, and discuss the facts and circumstances with you at some length. Depending on the circumstances, an arbitration clause may not be enforceable to prevent a wrongful death action. Even if the arbitration clause is enforceable, all is not lost---arbitration can be a good forum for pursing your case--especially if you have a strong case.

You say that you "consulted an attorney". Did you discuss this issue during this consultation? The attorney who you retain to represent you in this matter should advise you on this and many other issues--including most importantly whether you have a viable claim. Proving that a nursing home or its employees engaged in negligent patient care is often quite difficult, although not impossible. Note that there may be various statutory time constraints for bringing such a case. And you may be required to notify various insurance carriers and others who may have an stake in the case on a timely basis. It is good that you consulted with a lawyer--if that lawyer turned down the case and/or gave you a negative opinion about its value, then get another opinion. You need to move fast, however, as time is of the essence in investigating and pursuing such cases.

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