We have often used this space to discuss our Chicago brain injury attorneys opposition to medical malpractice damage caps. These caps interferences with the regular justice system under the “tort reform” banner that represents unnecessary and unfair intrusions upon the rights of regular consumers. We must ensure that consumers are made aware of the truth behind these measures. It is particularly troubling that so many residents are not aware that these measures are promulgated by the companies and entities which have the most to gain by taking away the rights of victims. These damage caps are somehow sold as good for the public as a whole, notwithstanding the fact that they are far worse for every individual community member.
Most of the discussions around medical malpractice damage caps refer to proposed state and federal legislation which would create these damage limits. However, those companies which seek to avoid full responsibility for their conduct are attempting to force the issue in other ways as well. For example, in the nursing home context, many facilities force new residents to sign an arbitration clause which requires all future disputes to move through the arbitration process, instead of the regular court system. As we have consistently explained, arbitration clauses are almost always skewed to the advantage of large defendants, because juries are not involved, rules of evidence are different, the process if often expensive, and defendants often chose the arbiter.
On top of all of those downsides, some companies have added even further limitations to the arbitration agreement. As recently discussed at Lawyers.com, some nursing homes tried to impose damage caps on new residents as part of the arbitration agreement. Fortunately, at least one state court has struck down these unconscionable impositions on consumers. Our Chicago brain injury attorney John Perconti was asked to explain the nationwide implications of two recent state Supreme Court cases. The cases, Shotts v. OP Winter Haven and Gessa v. Manor Care of Florida involved damage limitations inserted into arbitration clauses. In Shotts the limitation was a complete ban on punitive damages. In Gessa that challenged clause had a punitive damage ban as well as a $250,000 cap on non-economic damages. After hearings on the issues, the court struck both bans as violating the public policy of the state.
Attorney Perconti explained that there may be nationwide implications as “these opinions should deter nursing homes in other states from imposing damage caps in their agreements.” Illinois has not seen many, if any, of these clauses. But had the Florida Supreme Court upheld the clauses, it would be likely that nursing homes in our areas might have begun using them more in an effort to further avoid accountability for errors that it makes which harm residents. Even if local homes try to include these caps, Perconti explains that our state highest court would likely strike them down as well. He explained that these clauses “would violate Illinois public policy and undermine the remedies set forth in the Illinois Nursing Home Care Act.” Taking about substantive protections afforded to all community members via the guise of a forced arbitration clause should not be tolerated in our state.
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