The Saga of Arbitration Clauses in Nursing Home Admission Agreements Continues
In my previous post, I discussed the validity of an arbitration clause signed by a nursing home resident. Did that action bind the beneficiary of that resident when a lawsuit was filed? The answer is no. In Pisano the Pennsylvania Superior Court decided that an Arbitration Agreement did not bind a beneficiary who has a claim in her own right. The arbitration clause only binds the individual who signed it, and not a beneficiary who files a wrongful death claim.
But what about this common scenario? An arbitration clause was signed not by the resident, but by the resident’s son. Unfortunately an accident takes place causing the residents death and the son filed a survival action on behalf of the resident and a wrongful death action on his own behalf as a beneficiary.
Does the fact that the son signed the arbitration clause make a difference? Does his signature on the arbitration clause now subject him and his claim to Arbitration? The answer is NO. The son in his capacity as a beneficiary of the estate and as plaintiff in the Wrongful Death action may proceed with the claim to a jury and is not subject to the arbitration clause even though he signed it.
The Superior Court of Pennsylvania in the Burkett case (2015) decided.
As such, survival and wrongful death claims are separate actions with distinct plaintiffs asserting separate rights and a different measure of damages. Accordingly, when Burkett signed the Admission agreement, which included the Arbitration Clause, strictly and only, in his representative capacity as a “Responsible Person” he did not modify or disrupt his own right, or the rights of other family members and/or beneficiaries to bring a wrongful death claim before the trial court. Therefore, in accordance with Pisano and contrary to St. Francis’s argument, the trial court did not abuse its discretion in failing to compel arbitration of Burkett’s wrongful death claim.
So even signing the arbitration agreement keeps you out of the clutches of arbitration and allows you to bring a Wrongful Death claim to trial in front of a jury.
by Sam Abloeser, Esq.