By James W. Mallonee
Placing a loved one into a Nursing or Assisted Living Facility is never an easy task. Its emotional and the person being placed into the home may feel as if you have abandoned them. Because of this, while signing the admission contracts there is a moment where you may feel as if you just want to get it over with, you sign where you are told and leave. That could be a serious mistake because you may have unwittingly signed up to be the surety as well as accepting mandatory arbitration. The problem is you may or may not have the authority granting the facility the right to force arbitration should something go wrong while your loved one is a resident of the nursing facility. This article will focus on the arbitration issues of a facilities contract and not those contract provisions involving sureties.
Arbitration is a means of having a dispute settled outside of the courts. The positives for this are a reduction of costs and time spent litigating the issues. The downside of this is whether you will really get a fair review and remedies for damages the nursing facility caused your loved one.
How will you know if you have the authority to sign up to forced arbitration? If your loved one has a Durable Power of Attorney, it may be giving the attorney-in-fact such authority to accept arbitration. Healthcare documents typically do not give such authority nor does Florida statutes give authority to proxies the right to accept arbitration remedies for elder disputes.
Contracts signed by a son, daughter or other interested person providing acceptance to resolving disputes via arbitration are cloaked with check off the box type of acceptance. Worse yet, they are sometimes buried deep inside a 200-page admission contract.
In the case of Blankfeld v. Richmond Health and Rehabilitation, Inc. a/k/a Sunrise Health and Rehabilitation Center, the 4th District Court of Appeal was faced with the following factual issues concerning acceptance of the nursing facilities arbitration clause. The son placed his mother in a facility. The mother was senile and unable to understand the nature of the admission contract. The son took it upon himself to sign the admission agreement. The agreement provided that all disputes “shall be resolved by binding arbitration administered by the National Health Lawyers Association.”
While a resident of the facility, the mother was abused causing the son to initiate a case against Sunrise claiming (among other things) negligence. The nursing facility claimed that the case had to be arbitrated according to the contract and not conducted through court proceedings. The son countered the facilities contract term stating the arbitration provisions were unenforceable and more importantly unconscionable. The court reviewed the arbitration terms and conditions contained in the contract and found they effectively removed the ability of the arbitrator to award consequential, exemplary, incidental, punitive or special damages against a party unless there is clear and convincing evidence of such abuse warranting the aforementioned damages. These terms effectively eliminated any recovery for negligence because the evidence had to be clear and convincing as opposed to a preponderance of the evidence required in negligence cases. The court also reasoned that such terms and conditions imposed where contrary to the Nursing Home Residents Act, Chapter 400.023(2), Fla. Stat.
Thus, the requirement for forced arbitration (in this case) was considered void because it was in violation of public policy conferred upon patients by the Chapter 400, Fla. Stat. The court continued to declare that the son, who was named as his mother’s Healthcare Surrogate, did not confer upon him any right to accept, through contract, any arbitration as a dispute remedy. Moreover, Chapter 765, Fla. Stat. does not confer upon a proxy any right to agree to arbitration.
A proxy is a person appointed to assist in making health care decisions for an individual who is either incapacitated or developmentally disabled and has not executed an advance directive. The only decisions that can be made by a proxy are:
a) Informed consent, refusal of consent or withdrawal of consent to any and all health care, including life prolonging procedures.
b) The decision to apply for private, public, government, or veterans’ benefits to defray the cost of health care.
c) The right of access to all records of the principal reasonably necessary for a health care surrogate to make decisions involving health care and to apply for benefits.
d) The decision to make anatomical gift pursuant to part X of Chapter 732.
As you can see, you need to be careful when signing a nursing home contract. You should consider contacting an attorney of your choice and allowing him or her to review the contract before signing. This is especially true when it comes to the authority to sign; what you are signing up to; and, just who will be responsible for the payment of services your loved one will be incurring. Take the time to get this reviewed, it could save you significant costs in the event a dispute arises.
This article is intended for informational use only and is not for purposes of providing legal advice or association of a lawyer – client relationship.
James W. Mallonee (Jim Mallonee) is a graduate with a B.A. degree from the University of South Florida and a Master of Science degree from Rollins College in Winter Park, Florida. He obtained his Juris Doctorate from the University of the Pacific, McGeorge School of Law in Sacramento, California. Prior to returning to Florida to practice law, Mr. Mallonee was employed by Intel Corporation for 22 years in such locations as New Jersey, Florida and California.
In addition to being a member of the Florida Bar since 2003, Mr. Mallonee serves on the Charlotte Community Foundation Committee for asset allocation and teaches Business Law at State College of Florida. Mr. Mallonee is also on the Board of Directors for the Military Heritage Museum located in Charlotte County, Florida.
His firm practices law in the following areas: Probate, Wills & Trusts, Guardianships, and Litigation in the areas of Real Estate, Guardianships and Estates. The firm has two locations in Venice and Port Charlotte, Florida.
946 Tamiami Trail, #206
Port Charlotte, FL 33953
(941) 206-2223
Facsimile (941) 206-2224
871 Venetia Bay Blvd., #225
Venice, FL 34285
(941) 207-2223