West Virginia Supreme Court Strikes Down Arbitration Agreement in Nursing Home Abuse Case

Often times, admission to a nursing home is conditioned upon signing an Arbitration Agreement and foregoing your right to sue the nursing home if it negligently treats and/or kills your elderly loved one. Through these arbitration agreements, the nursing home industry is attempting to insulate itself from full responsibility and liability. However, a recent West Virginia Supreme Court decision will go a long way in protecting the elderly citizens of this state by preserving their or their beneficiaries the right to a trial by jury.

In SER AMFM, LLC, et al. v. Hon. Charles E. King, McDowell Nursing Home sought a writ of prohibition with the West Virginia Supreme Court of Appeals seeking to deny the wrongful death beneficiaries of the decedent's estate their day in court. According to the underlying record, the decedent's physician selected the decedent's daughter to serve as her mother's "health care surrogate" because the physician determined that the decedent was incapacitated. In West Virginia, a physician can select a "health care surrogate" for the patient if it is determined that he or she is incapacitated. A "health care surrogate is authorized to make health care decisions on behalf of the incapacitated person which include "decisions to give, withhold or withdraw informed consent to any type of health care, including but not limited to, medical and surgical treatments, including life-prolonging interventions, psychiatric treatment, nursing care, hospitalization, treatment in a nursing home or other facility, home health care and organ or tissue donation." W.Va. Code § 16-3003(i) (2002) (Repl. Vol. 2011).

On or about September 10, 2009, the decedent was admitted to McDowell Nursing Home to receive nursing care. As part of the admission's process, the decedent's daughter was required to sign many documents, one of which was an Arbitration Agreement. The Arbitration Agreement stated that any legal dispute, controversy, demand or claim … that arises out of or relates to the Resident Admission Agreement or any service or health care provided by [McDowell Nursing Home] to the [decedent] shall be resolved exclusively by binding arbitration." The Arbitration Agreement further stated that "THE PARTIES UNDERSTAND AND AGREE THAT BY ENTERING THIS ARBITRATION AGREEMENT THEY ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN A COURT OF LAW BEFORE A JUDGE AND A JURY." During the next ten months, the decedent was a resident at the nursing home at which time she allegedly sustained pressure sores, infections, dehydration, malnutrition, and other injuries which caused and/or contributed to her wrongful death on July 31, 2010.

The Plaintiff filed a wrongful death claim against the nursing home on December 1, 2011, alleging among other things, that the nursing home was negligent in its care and treatment of the decedent which caused and/or contributed to her wrongful death. The nursing home filed a motion to dismiss the claim and to enforce the Arbitration Agreement which had been signed by the decedent's daughter. The Circuit Court denied the nursing home's motion and found that the arbitration agreement was unenforceable. The Circuit Court reasoned that the Health Care Decisions Act only allowed a surrogate to make decisions regarding health care - not decisions waiving one's constitutional right to a jury trial. In an opinion authored by Supreme Court Justice Robin Davis, the West Virginia Supreme Court of Appeals denied the nursing home's petition for writ of prohibition and found that a surrogate does not have the authority to waive an incapacitated person's constitutional right to a jury trial because it is not a health care decision.

The allegations against the nursing home in the underlying case are troubling. According to the Complaint filed by the Plaintiff, the nursing home negligently cared for the elderly decedent by allowing her to suffer pressure sores, infections, dehydration, malnutrition, and other injuries which caused and/or contributed to her wrongful death. In their advanced state, the elderly are extremely vulnerable and require the upmost protection and care. Nobody deserves to be treated in such a despicable way, especially the elderly after they had contributed so much to society for all those years. That is why the West Virginia Nursing Home Abuse Lawyers at the Fitzsimmons Law Firm are committed to protecting the rights of the elderly and their family members when they have been subjected to nursing home abuse or malpractice.

Equally disturbing, however, is the fact that after allegedly treating the decedent in this manner, the nursing home tried to deprive the decedent's family of their day in court by attempting to compel their claims be subject to arbitration. Arbitration is an alternative dispute resolution procedure where the parties' claims are submitted to and ruled upon by one or more individuals called arbitrators outside of a courtroom. Arbitration has been championed by big business and corporate America as a cheaper and faster means of resolution. However, this sale pitch is merely a ruse for the real push behind arbitration. So the question must be asked, "What is the true reason big business and the national Chamber of Commerce support arbitration?

The answer is simple. Arbitration tramples upon consumers' rights and denies you your constitutional right to a jury trial. For example, there is limited discovery in arbitration which prevents an injured consumer from fully developing his or her case. Often times, arbitration agreements strip away your right to be part of a class action which unfortunately leaves those with smaller damages without recourse. Additionally, the impartiality of arbitration has been questioned by many who claim that the process is biased towards big business. According to these critics, arbitrators are beholden to the businesses that employ them. Because the big corporations, and not the injured consumers, are repeat customers, the arbitrators feel compelled to rule in the corporations favor in order to get selected again for future business. In arbitration, the arbitrators are often selected by the parties or from a pool of qualified arbitrators.

Trial by jury is one of the most sacred rights we have as Americans. It must be preserved at all costs. We cannot let big business, corporate America, and the national Chamber of Commerce steal this right away from us. Do not be fooled by their propaganda and marketing that arbitration is in your best interest.


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