I have spoken extensively about nursing home arbitration clauses often placed within nursing home admission papers. An arbitration clause has the power to dictate which causes of action can go before a jury and which must go through arbitration, a more discrete out of public view dispute resolution option. Arbitration agreements are construed according to contract law, requiring a valid offer, acceptance, and consideration. The recent case brought before the Pennsylvania Court of Common Pleas, Tyler v. Kindred Healthcare Operating, the court overturned the defendant's preliminary objections to plaintiff's wrongful death and survival complaint. The court held that the meeting of the minds could not be established when the decedent signed her admission papers for admittance into Kindred Healthcare nursing home. Further finding that the decedent's daughter was also unable to act as the decedent's power of attorney as the decedent had not given away any rights nor did the decedent authorize any family member to make any legal decisions on her behalf.
In Tyler v. Kindred Healthcare Operating, plaintiff Avenia Tyler brought a wrongful death and survival action against two nursing homes, Kindred Healthcare Operating, Inc. ("Kindred"), and St. Francis County House ("St. Francis"). Plaintiff alleged that decedent Ruth McNear, had developed necrosis, advanced pressure sores on her right lower extremity, and a second fracture to her right femur which required surgery. Plaintiff further stated that Ruth McNear had passed away due to complications from the second leg fracture and subsequent surgery. At the time decedent's death, McNear was in complete control and care of defendants. When proper care is taken bedsores should not be present in residents of nursing homes. Part of care plans for residents that have limited mobility is a reposition of the resident approximately every 2 hours. If repositioning continues to be overlooked or ignored, often as a means to save limited time in understaffed facilities, a resident can suffer bedsores, urinary tract infection, and even a wrongful death. As part of the Federal Nursing Home Reform Act of 1987, all nursing homes that receive federal funding are required to have "sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident." Bedsores are the most common form of negligent care given in nursing homes. It takes time and pressure for a bedsore to begin to form and even more time for the pressure wound to become infected.
Ultimately the court held that the arbitration clause could not be enforced as the decedent was not competent at the time of signing and therefore there was no meeting of the minds when the contract was executed. Medical records note at the time of signature decedent was disoriented and her thoughts were cloudy. While a resident at the nursing homes, nurses noted that decedent was both confused and impaired. St. Francis the second nursing home for the deceased Ruth McNear wanted to enforce the arbitration clause despite the late McNear state of confusion. The court held that the decedent's daughter could not act as her mother's agent simply because there is a familial relationship. Instead, the court held that the decedent would have had to given Lynette, her daughter power of attorney or at the very least the authority to make legal decisions on her late mother's behalf. Accordingly, the court held in favor for the plaintiff finding that the survival action could not be severed from the wrongful death action.