Ideally, health care providers do the right thing. Good Care is provided. There is no negligence. But what if they don’t do the right thing? What if they are negligent? Should you have the right to consider your options regarding how to hold them accountable? Over the past two decades, many long-term care providers, especially […]
In Welch v. Oaktree Health and Rehabilitation Center (2/28/2022), the Tennessee Court of Appeals reversed a trial court’s determination that an arbitration agreement could not be enforced. David Welch was a nursing home resident. Prioer to his death, he executed a power of attorney for health care, designating his brother, James Welch, as his health […]
In CL SNF, LLC v. Fountain (Ga. Supreme Court September 21, 2021), the Georgia Supreme Court reversed CL SNF, LLC v. Fountain, 355 Ga. App. 176, 183 (1) (843 SE2d 605) (2020), finding that the Georgia Guardianship Code grants a guardian authority to enter into a binding pre-dispute arbitration agreement. The Clinch County Probate Court […]
Marmet Health Care Center v. Brown, 132 S. Ct. 1201 (2012). Marmet began as three seperate cases in West Virginia. In each case, a family member of a nursing home resident signed an admission agreement which included an arbitration clause buried within the text. The Plaintiffs argued the arbitration provision was void because it violated […]
On appeal, the issue was the validity of an arbitration agreement entered into by Dorothy Necessary (“Plaintiff”) while signing documents on her husband’s behalf to have him admitted to a skilled nursing facility. Necessary had her husband’s oral express authority to sign all paperwork necessary for his admission to the facility. She claimed that this […]
On appeal, the Supreme Court of Tennessee found that the primary issue was whether a durable power of attorney for health care authorized the attorney-in-fact to enter into an arbitration agreement as part of a contract admitting the principal to a nursing home and thereby to waive the principal’s right to trial by jury. The […]
After admission to the nursing home, resident met with the admissions director and signed a “resident admission agreement” and an “alternative dispute resolution agreement between resident and facility.” Later, resident suffered from recurring falls, was permitted to get sick and died as a result of treatment. Daughter filed a wrongful death action against nursing home. […]
In wrongful death case against nursing home, Defendants appealed trial court’s order granting motion to compel three incident reports prepared by staff, and denying Defendants’ motion for protective order based on peer review privilege. Incident reports were prepared by nursing home following unusual circumstances and documented facts surrounding them. Defendants provided affidavit of Administrator stating […]
After Plaintiffs filed a wrongful death suit, Defendants filed a motion to compel arbitration. Plaintiff argued the resident was incompetent and incapable of understanding the agreement and that the agent had no authority to enter into an arbitration agreement. The court found that resident’s health care agent had authority to bind the agent “in matters […]
Nursing home moved to compel arbitration, which was denied because it designated the American Health Lawyer’s Association as the arbitrator (which no longer accepts arbitration of health care disputes where binding arbitration agreements are signed pre-injury). The court found it could not re-write the agreement for the nursing home. “Given the nature of the relationship […]
When Luanna Campbell was admitted to a nursing home, her daughter signed a number of agreements, including an arbitration agreement. Plaintiff argued there was no valid agreement to arbitrate because: (1) Lizzie Bowens lacked the authority to bind Luanna Campbell to arbitration; (2) the circumstances in which Campbell signed the agreement are dubious; and, (3) […]
Resident suffering from dementia was admitted to nursing facility. Husband signed admissions documents including two arbitration agreements. California law prohibits including the arbitration agreement in the admissions agreement so it was a separate document. Husband signed the arbitration agreement on a line labled “Legal Rep/Responsible Party/Agent.” Husband did not hold a power of attorney and […]
Children of deceased nursing home resident sued nursing home. The trial court denied the nursing home’s motion to compel arbitration and the nursing home appealed. The resident had executed a California Probate Code § 4701 health care power of attorney that impliedly included the power to execute contracts for nursing home admission. The power of […]
Kindred filed a motion for an emergency protective order after the trial allowed limited discovery on the sole issue of whether the arbitration agreement executed on behalf of the resident was void. Among the matters over which Kind sought protection was the relationship between Kindred and the service that administers the ADR program, as well […]
The trial court denied a motion to compel arbitration because the agent had no authority to execute the arbitration agreement. On appeal, the court found that the health care agent “had the authority to execute on King’s behalf any waiver, release, or other document which may be necessary to implement health care decisions that Daniel […]
When defendant answered the complaint it alleged the dispute was subject to arbitration and asked for a jury trial. After four months of discovery, Defendant moved to compel arbitration. The trial court denied the motion ruling that Defendant could not withdraw its jury demand without Plaintiffs’ consent. On appeal, the court found that Defendant could […]
Trial court granted motion to stay pending arbitration. Affirmed on appeal. On appeal Plaintiff argued that the agreement was procedurally and substantively unconscionable. Reviewing the facts, the court observed that “[a]n unconscionable contract clause is one in which there is an absence of meaningful choice for the contracting parties, coupled with draconian contract terms unreasonably […]
Buie filed a wrongful death action after resident’s death. Buie signed an agreement for arbitration on the line for a legal representative, but not on the line where she would sign for herself. Defendants argued that the case should be dismissed under Rule 12(b)(1) because all claims were subject to arbitration; Defendants moved to compel […]
After Plaintiff filed suit, Defendant filed a motion to dismiss, compel arbitration and stay discovery. The magistrate entered a report and recommendation that the motion be denied. Before the magistrate the plaintiff raised enough evidence to question the nursing home resident’s capacity to enter into an arbitration agreement. The plaintiff also argued that because a […]
When Dan Weeks entered the nursing home, Murry Weeks, his legal representative signed an “an agreement to arbitrate any dispute that might arise between Dan Weeks (“Resident”) and/or Murry W. Weeks (“Legal Representative” and [Greenwood Health and Rehabilitation Center](“Facility”)(“Facility” includes the particular facility where the Resident resides, its parents, affiliates, and subsidiary companies, owners, officers, […]
Defendants in a State court action filed a declaratory judgment action in federal court seeking a declaration as to the validity of an arbitration agreement. The resident’s sister had signed the Agreement for Arbitration. The court found it clear that resident could not have signed the agreement herself due to HIV, CVA with right-side hemiparis, […]
Defendant moved to compel arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 4. Under 5th Circuit precedent, the court must first determine whether the parties agreed to arbitrate and whether the dispute in question falls within the scope of the agreement. Here, the resident’s daughter signed the arbitration agreement without a power of […]
Plaintiff filed a State court action alleging nursing home negligence at a home controlled by JPMorgan. When admitted, Plaintiff’s mother filed a conspicuous arbitration clause, introduced in bold-faced font stating “ARBITRATION – PLEASE READ CAREFULLY.” After the State court action was filed, JPMorgan filed a federal action to compel arbitration. The only argument considered was […]
On November 7, 2002, when resident was admitted to a nursing home, her daughter signed an agreement for arbitration. On August 23, 2004, a nursing home negligence case was filed in State court. Mariner then filed a federal action to compel arbitration. Fifth circuit precedent indicates the court should determine (1) whether there is a […]
Facility sought to compel arbitration after suit was filed. Resident was alone when admitted to the facility. He was illiterate, but purportedly executed an arbitration agreement. Although illiteracy alone will not invalidate an arbitration agreement, the Estate contended that the resident did not place the “X” on the agreement and the facility employees could not […]
Plaintiff brought wrongful death action against assisted living facility. During the admission process, resident’s daughter signed admission papers without a power of attorney and without discussing it with the resident. After suit was filed, the facility filed a motion to compel arbitration. The matter was referred to the magistrate. The court found no evidence that […]
At admission to assisted living facility, daughter who was completing documents indicated she wanted to have residency agreement reviewed by an attorney. The facility employee said that would be “pointless” because the facility would not accept any changes and resident would not be allowed to move in without a signed agreement. The agreement provided for […]
This is not a nursing home case. Justice Scalia, writing for the Court, framed the issue as whether a court or an arbitrator should consider a claim that a contract containing an arbitration agreement is void for illegality. Customers of a check cashing company had signed agreements including an arbitration clause. A class of customers […]
The Estate appealed after the trial court granted Manor Care’s motion to compel arbitration. Resident’s wife had signed admissions agreement and an arbitration and limitation of liability agreement. After the resident filed suit, Manor Care answered, making a demand for trial by jury. Later it moved to compel arbitration. On appeal, Plaintiff argued that Manor […]
Conservator initialed pages indicating she read arbitration agreement, but did not sign the agreement. Facility made two attempts to have her sign the arbitration agreement and each time she declined. Resident continued to receive care in the facility. Plaintiff submitted an affidavit stating: “To the best of her memory and knowledge she had a reservation […]
Order compelling arbitration was affirmed. Four days after admitting her mother to a nursing home, Ms. Coker, the resident’s daughter, signed documents which included an arbitration and limitation of liability agreement. The agreement was clearly worded, conspicuous and separate from other documents. “The Agreement was intended to be signed by “Resident, Guardian or Other Legal […]
Defendant nursing home moved to compel arbitration. The trial court denied the motion, and the nursing home appealed. The agreement provided that controversies would be arbitrated pursuant to Alternative Dispute Resolution Service Rules of Procedure for Arbitration of the American Health Lawyers Association. Rule 6.06 provided that the “arbitrator may not award consequential, exemplary, incidental, […]
Both parties appealed after the court severed limitations on damages but compelled arbitration. In 2004, Plaintiff filed suit for negligence and violations of the Assisted Living Facilities Act. Alterra moved to compel arbitration because the resident’s agent, who held a power of attorney, signed the Residency Agreement containing an arbitration provision. The court compelled arbitration […]
The decision of the trial court was reversed and arbitration was compelled. On September 17, 2002, Mann underwent a total gastrectomy for stomach cancer. On June 18, 2003, after the surgery but prior to surgery to repair a hernia, he signed an arbitration agreement. During the hernia surgery, his bowel was punctured. Following a third […]
On admission to the nursing home, the resident’s granddaughter executed an admission contract that included an arbitration agreement. Later, after the resident died, the resident’s daughter filed a wrongful death action. The trial court denied the motion to arbitrate, finding that Missouri law applied, that it was not pre-empted by the Federal Arbitration Act, that […]
Plaintiff filed a negligence and wrongful death suit against the nursing home. Kindred filed a motion to dismiss or, in the alternative, stay litigation pending arbitration. The trial court denied the motion, finding that the resident’s daughter had no express or implied authority to bind the resident when the arbitration agreement was signed at admission. […]
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