The admissions paperwork required of a new nursing home patient is substantial and sometimes overwhelming. There are reams of medical forms, releases of information and waivers. It’s a stressful time, so many new patients and/ or family members go through the motions of just getting through it all. What many might not realize is that tucked in there somewhere is probably a form known as an arbitration agreement. By signing that agreement the patient and/or patient representatives agree to forego the right to a jury trial if a dispute later arises between the patient/ representatives and the nursing home. This includes disputes regarding allegations of nursing home abuse, neglect or negligence.
Signing over that right is a big deal because arbitration is usually less favorable to patients on many fronts. That’s why so many nursing home abuse attorneys will vehemently argue that even if there is an arbitration agreement, it’s not enforceable for one reason or another. It requires an injury lawyer or wrongful death attorney who is also well-versed in contract law. These are questions you need to ask of any lawyer with whom you’re consulting and considering to hire.
In a recent case out of West Virginia, the state supreme court ruled in AMFM LLC v. Shanklin that an arbitration agreement signed by the daughter of a patient could be enforced – despite daughter’s protests that she did not have actual authority to enter into the agreement because she held only the alternate durable power of attorney for her mother; her brother was actually the one with primary durable powers of attorney. Although the trial court denied the nursing home’s motion to dismiss on these grounds, the state supreme court reversed.
According to court records, the patient was transferred from the hospital to defendant nursing home in February 2013. At the time, she suffered from dementia and it is not disputed she was unable to handle her own affairs when she was admitted. Her daughter accompanied her there and signed all of the admissions documents – including that arbitration agreement. Patient’s son, the one with primary DPOA, was not present.
Patient lived at the facility for three years. About one month after she left the nursing home, she died. Soon thereafter, her daughter filed a wrongful death lawsuit against the nursing home, alleging corporate negligence, medical malpractice, gross negligence, fraud, premises liability, statutory nursing home violations and wrongful death.
It was noted during the proceedings that plaintiff had previously exercised a number of rights afforded with DPOA prior to her mother’s admission to the nursing home – and had been doing so for about two years before her mother was admitted. These included managing bank accounts and endorsing checks for her mother. She also continued to serve as her mother’s DPOA after her mother left the facility. She was also listed as having medical power of attorney for her mother, as well as financial power of attorney and was listed as both her agent and emergency contact.
Still, plaintiff supplied an affidavit indicating he was never contacted by the nursing home about his mother’s admission to the nursing home or the arbitration agreement. He indicated that at all material times, he was willing and able to perform these duties.
The trial court ruled the burden of proof was on the nursing home to show the primary DPOA could not or would not serve before it could rely on the alternate DPOA. The nursing home appealed, and the state supreme court reversed. Although plaintiff argued her authority could only be triggered by brother’s inability or unwillingess to continue to serve as his mother’s DPOA, the state supreme court sided with the nursing home. The court noted there was no evidence the son had exercised is DPOA, while the daughter had on numerous occasions.
The court ordered the matter remanded to trial court for an order granted the nursing home’s motion to dismiss and compel arbitration.
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AMFM, LLC v. Shanklin, May 30, 2018, West Virginia Supreme Court
More Blog Entries:
Family Sues for Nursing Home Missed Medication Causing Wrongful Death, May 29, 2018, Orlando Nursing Home Abuse Lawyer Blog