Kentucky Supreme Court Rules Against Nursing Home Arbitration Agreement

Mandatory arbitration agreements are a hot topic in all areas of contract law but few areas excite as much vitriol as agreements signed as part of admittance to a nursing home. In three Kentucky cases, nursing homes were seeking to compel arbitration over tort actions by family members of residents. However, the families fought back ultimately asking the Kentucky Supreme Court to invalidate the agreements.

In Extendicare Homes, Inc. v. Whisman, the court held that a constitutional right to a jury trial cannot be waived by a holder of a general power of attorney. The court recognized that there was language in the power of attorney forms which could have authorized the agents to agree to arbitration but that express and unambiguous language must be used to grant the power. Going forward, this could be a big win for nursing home residents who will have somewhat easier access to juries in order to recover from negligence.

See Liz Kramer, Kentucky Supreme Court compares giving up jury trial to giving up parental rights; refuses to enforce arbitration, Lexology, September 28, 2015.