I enjoyed the Borat movie, and reflexively sided with Borat when I read news reports about the law suits filed against him (alter ego Sacha Baron Cohen, actually) and the various companies behind the movie.  So the drunken Chi Psi fraternity brothers thought they were being filmed for an obscure documentary, and didn’t realize they would be laughed at by moviegoers from Maine to Malibu? Too bad, so sad--the movie company reports that it has signed releases from the frat guys, the villagers in Borat’s purported home town, and every other person appearing in the movie.

But on second thought, I’m siding with the Chi Psis.  In my own work, representing residents of nursing homes and assisted living facilities, I’m well familiar with the “We have a signature” argument.  Nursing home admission agreements frequently purport to reduce or eliminate the nursing home’s responsibility.  In admission agreements and accompanying videos, nursing homes advise family members to have “reasonable expectations”--to understand, for example, that staffing levels may be insufficient and that a resident’s future injury will be presumed to be the family’s fault for their failure to supplement nursing home staffing with a one-on-one private duty aide.

Assisted living operators use bait-and-switch arguments to justify the use of “negotiated risk” agreements.  Negotiated risk is promoted as increasing resident independence, through documenting and honoring a resident’s decision to act against professional advice. The most common example is a diabetic choosing to eat dessert.  In reality, however, negotiated risk agreements waive a facility’s liability when a facility cannot meet a resident’s health care needs.

Today, the most vigorous debates occur around mandatory arbitration.  Admission agreements commonly recite that the resident has waived her right to a jury trial and that any and all future disputes instead will be referred to arbitration, often on terms that overwhelmingly favor the facility. Unfortunately, courts frequently uphold these arbitration agreements, even though there is no earthly reason why a resident during the admission process would choose to bind herself to arbitration for unknown future disputes.

This problem is bigger than long-term care.  Consumer contracts in general are increasingly likely to contain unfair provisions.  Most of us have felt the helpless resignation in clicking “I accept” on the incomprehensible disclaimers that often accompany on-line purchases.

Change must take place in Washington. The Federal Arbitration Act was written to encourage enforcement of business-to-business arbitration agreements, but its warped interpretation today preempts states from legislating consumer protections.  At a minimum, federal law should be amended to prohibit health care providers from obtaining pre-dispute arbitration agreements.

Let’s face it – in the consumer context, arbitration “agreements” are a joke.  You and I sign them not because we have made a deliberative decision, but because we feel that we have no choice. 

I hate to admit it, but if the Borat producers had given me a release, I might have signed it too, even if I hadn’t had anything to drink that morning.