Unfortunately, most courts around the country have enforced nursing home agreements executed by residents agreeing to forgo civil claims in favor of arbitration for negligence claims.
The game changes in wrongful death cases. Usually this is for a very simple reason: the parties have changed. Courts in Maryland and other jurisdictions have largely declined to enforce arbitration agreements between nursing homes and deceased residents because any wrongful death action is not an “asset” of the estate but a claim brought under the plaintiffs’ own right for the loss of their spouse or parent.
There are two new Pennsylvania nursing home cases that favor plaintiffs in these disputes.
Pisano v. Extendicare
In Pisano v. Extendicare Homes, a Pennsylvania intermediate court affirmed the trial court’s motion for summary judgment in a wrongful death and survival action filed against a nursing home. The nursing home attempted to compel arbitration over both causes of action based on the existence of an agreement to arbitrate all claims against the nursing home, expressly including survival and wrongful death actions. This was an issue of first impression in Pennsylvania.
The nursing home’s best argument in these cases, which they made in Pisano, is that a wrongful death claim is a derivative of and defined by the decedent’s rights. While it is their best argument, it is weak. The Pennsylvania court agreed using a lot of complicated legal analysis that can best be described as follows: the parties are different so it is not derivative.