Published on:

Fighting Nursing Home Arbitration Agreements – Evangelical Lutheran Good Samaritan Soc’y v. Kolesar

Mandatory nursing home arbitration agreements are more frequently becoming the norm within facilities across Florida and the nation. In seeking to shield the facility from liability to the greatest degree possible, administrators will require all new patients and/or their representative to sign an arbitration agreement as part of admission. In many cases, it’s not presented as a major legal decision, though it most assuredly is.
signacontract.jpg
What troubles our Broward County nursing home abuse attorneys is that when people sign these agreements, they are effectively signing away their right to have complaints of abuse, neglect and negligence heard by a judge and/or jury. Instead, such complaints go through a private mediation process that tends to produce results skewed in favor of the facility.

Fortunately, there are a number of legal grounds upon which these arbitration agreements can be challenged. One of those is reasoning that the named arbitrator in the contract either isn’t available or doesn’t arbitrate those types of cases. Another possibility is that the person who signed the document did not have the authority to do so, either because he or she was not competent to make such a decision or because he or she had no legal right to sign for the patient. Finally, there is the potential unconscionability of the contract itself. This involves showing whether there was an inequity of bargaining power between the two sides or whether the stronger party imposed a form of the contract on the weaker that prevented him or her from choosing freely.

An experienced nursing home injury lawyer can help you determine the best argument for your case if an arbitration agreement is at issue.

This was the situation in Evangelical Lutheran Good Samaritan Soc’y v. Kolesar, which was recently appealed all the way to the Arkansas Supreme Court. Although contract law can vary from state-to-state, the same basic legal principles are relevant here in Florida.

Court records indicate the husband of the nursing home resident filed a medical malpractice lawsuit against the nursing home and its staffers for injuries sustained by his wife while she resided there. The exact nature and extent of her injuries was not described in the supreme court filing.

What we do know is that prior to her admission to the facility, her husband signed an arbitration agreement on her behalf.

After she sustained injury, her husband filed a lawsuit in state court. The nursing home attorneys removed the case to federal court and argued the matter was controlled by a valid arbitration agreement. The federal court remanded the case back to state court, finding it lacked subject matter jurisdiction.

The nursing home then filed a motion to compel arbitration and dismiss the lawsuit.

In his response, the plaintiff argued the following points:
–The arbitration agreement was not valid;
–The nursing home had waived its right to arbitration;
–The arbitration agreement couldn’t be carried out because the National Arbitration Forum, named in the agreement, no longer conducts consumer arbitrations;
–The agreement was unconscionable;
–The agreement is illegal because it deprives the patient of her rights reserved under the state’s resident rights statute;
–The husband lacked the authority to waive this right on her behalf;
–The nursing home breached a fiduciary duty to the patient.

The nursing home denied several of these assertions, but not all.

The circuit court subsequently denied the defense motion to compel arbitration. The appellate court denied appeal because it indicated the appeal was untimely. The state supreme court granted review, finding the appeal was timely.

However, the high court rejected the assertion that the circuit court erred in refusing to compel arbitration. The bigger issue for the defense was that the nursing home failed to address in its initial brief findings that were presented and ruled on by the circuit court regarding the case. The first time four key issues were raised was in its reply brief. Those issues included the nursing home’s assertions that the agreement was not unconscionable, that the naming of a specific arbitrator was not an integral term of the contract, that there had been valid consideration for the agreement and that the nursing home did not breach a fiduciary duty to the patient.

The court pointed out that when an appellant fails to challenge all the grounds on which the earlier ruling was based, those other grounds are affirmed without comment.

With those grounds affirmed, the circuit court’s ruling to deny arbitration was upheld.

Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:
Evangelical Lutheran Good Samaritan Soc’y v. Kolesar, June 19, 2014, Arkansas Supreme Court

More Blog Entries:
Nursing Home Sexual Abuse Alleged in Lawsuit, June 15, 2014, Broward County Nursing Home Abuse Lawyer Blog

Contact Information