A right worth the fight.

In the early part of this decade, Tennessee nursing home conglomerate National Healthcare Corporation (NHC) became a strong proponent of the use of mandatory and binding arbitration clauses in nursing home admission agreements. In fact, NHC made entering into such an agreement a condition of admission to any of its facilities. Over the years, NHC has staunchly defended its clauses in trial and appellate courts with mixed results.

But NHC's success or lack thereof is not the topic today. Its motives are. The interesting thing is that no one has to speculate about those motives. NHC has revealed them in black and white. When the time came to train administrators and bookkeepers on arbitration clauses, NHC scripted a little play and made a video. The script was revealed in discovery and is of record in many cases. It's a fun and revealing read.

Two of the characters in this little production are "Robert" and "Ted." The relevant and telling part of the script reads as follows:

Robert; As all of you know, this last year, especially in Florida, NHC has been caught up in what we can only call a "litigious environment." Because of the way the tort law is written and its connection with nursing home patient rights, a door has been opened that has encouraged plaintiff attorneys to take us to court to play on the public bias about nursing homes and get big judgments against us....

The kind of "circus atmosphere" that has surrounded the cases that have gone to trial is really alarming. It has turned into a big game of "Gotcha!"

Ted: All year we have been focusing on how best to defend ourselves from this kind of onslaught. I guess at first we all kind of saw ourselves as being forced to hide in a fortress and defend ourselves against all corners.... And I guess we all wanted at first to shoot them.., any of them that seem threatening to us!

The script details NHC's strategy of defending itself by forcing plaintiffs into arbitration. This is the kind of action "that can be taken to protect us, our patients, and their families from the damage that wholesale litigation and huge judgments could bring," the script says.

From the corporate mouth comes the corporate motive. Contrary to the glowing and naive rhetoric from courts (including the U.S. Supreme Court) and academics alike, arbitration clauses in this context are not motivated by obtaining justice more quickly and with less expense. Arbitration is favored by corporations because it avoids juries-juries that would hold them accountable for their wrongdoing by awarding just and reasonable compensation to people injured by that wrongdoing.

The NHC story does not end with its motives. Its actions are equally disturbing. The case in which the company's video came to light is just one example. Circumstances had forced a woman to place her mother in a non-NHC nursing home for rehabilitation after the mother suffered a broken hip. When the nursing home failed to institute the bladder-training program the mother needed, the daughter complained, but to no avail. In fact she had trouble finding somebody to whom she could complain.

One day, the daughter came into the facility and found her mother in the common area, wet with urine from the waist down and sobbing quietly. "They never came to get me," she said.

The event was the end of the line for the daughter. She went immediately to the NHC facility down the road to inquire about transferring her mother there. She relayed the story to the admissions staff member and received assurances that no such thing would happen in the NHC facility. After all, she was told, NHC had an "arbitration committee," which would convene to address any care concerns--her complaints would be heard at NHC. That's what it was for, she was told.

There was no mention of waiving a jury trial and access to courts.

There was no mention of avoiding juries.

There was no mention of hiding in a fortress and shooting all of the plaintiffs' lawyers.

There was no mention of sidestepping huge judgments.

Of course, after the move came the inevitable abuse, leading to the inevitable lawsuit, which was followed by the inevitable motion to compel arbitration. The daughter ultimately defeated the clause's enforcement after significant cost and delay.

This story is hardly exceptional. Arbitration clauses are mired in the morass of admissions documents used by nursing home facilities across the nation. Families seeking rehabilitation or end-of-life care for their loved ones, often experiencing a great deal of stress and feeling guilty about being unable to provide this care themselves, sign contracts containing these clauses, usually without ever knowing they are there.

Even more disturbing, the people signing often have no real authority to act for the resident, or have a power of attorney that never contemplated waiving a constitutional right. Yet, courts naively enforce these clauses with reference to "the strong national policy favoring arbitration of disputes," a policy overstated and misapplied with great regularity.

The fight against this injustice by people like the daughter in the case described above is not in vain. Congress is weighing a bill that would outlaw all mandatory predispute arbitration clauses in nursing home admission agreements. It appears to have bipartisan support. Why? Because facts like the ones developed in the daughter's case are appalling and have caught the attention of lawmakers. Those facts are developed by plaintiffs who fight back even when doing so is costly and time-consuming.

A Tennessee trial judge once commented while ruling on a motion that how one looks at a case often depends on how one feels about tort law. In his view, one reason we have tort law is to make society safer.

This country's founders had a definitive idea about how to protect society. When the founders listed their grievances against the king in the Declaration of Independence, they included among them "depriving us in many cases of the benefit of trial by jury." The Bill of Rights--and state constitutions--expressly include the vital right to trial by jury. It's a right worth fighting for.

BRIAN G. BROOKS is a sole practitioner in Greenbrier, Arkansas.