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Why Is the West Virginia Legislature Waging War on Seniors? Senate Should Reject SB 493, Bill Allows State to Waive Constitutional Rights
February 20, 2015
Charleston, W.Va. – The West Virginia Association for Justice urged the State Senate to reject a bill that denies senior citizens harmed in nursing homes that right to trial by jury. SB 493 allows a medical power of attorney to waive the patient’s right to jury trial. If there is no medical power of attorney, the State of West Virginia is allowed to waive that right on behalf of the patient.
“Why is the West Virginia Legislature waging a war on our state’s senior citizens? Just this week it passed SB 6, which caps damages on injury claims and limits the ability to hold negligent nursing homes accountable in court. Yesterday the Senate passed SB 421 that limits caps on punitive damage awards that ensure that these corporate interests cannot profit when reckless and intentional behavior harms or kills patients. Now, there’s this bill that allows your constitutional rights to be signed away,” said Anthony Majestro, president of the West Virginia Association for Justice.
“Medical power of attorney authorizes someone to make medical decisions for you, not legal ones and certainly not waiving your right to a jury trial if you’re injured. These binding arbitration clauses are hidden in boilerplate contracts and other admission documents for nursing homes. People sign them without even knowing the clauses are there because nursing homes aren’t required to disclose them.”
“What’s worse is that the proposal allows the state to step in and sign away your rights if you do not have a power of attorney. The last thing the government should ever be allowed to do is sign away a citizen’s constitutional rights. It’s outrageous that it’s even being considered. No one would ever allow the state to sign away our 1st Amendment or 2nd Amendment rights, so every West Virginian should demand that the state not be allowed to sign away our 7th Amendment rights.”
Arbitration is a substitute for the right to go to Court. In arbitration, an individual or panel of individuals decide the dispute instead of a judge or jury in a court of law. While arbitration can be a useful tool if the parties have equal bargaining positions, it is an unfair process for nursing home patients who are in a far weaker economic position than the wealthy corporations that own the facilities. Arbitration has several characteristics which make it harder for an individual to prevail in disputes against the business, including steep case filing fees and hourly rates for each arbitrator from $100 to $450 per hour as well as provisions that defeat legislatively-enacted consumer protection laws. Deposits of $25,000 are a common requirement to bring a case. Arbitration panels are also inherently biased against the patient, since the corporation typically uses the same arbitrators for all of its actions. If the arbitrators want to keep receiving a check for services, they will not rule against the nursing home.
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