Are wrongful death beneficiaries bound by an arbitration agreement when bringing a wrongful death claim? This issue has been batted around now in so many jurisdictions. Today, it was Kentucky’s turn.
Facts of Greenville Nursing and Rehabilitation, LLC et al v. Majors
The facts of Greenville Nursing and Rehabilitation, LLC et al v. Majors are simple. A son takes his mother to a nursing home in Greenville, Kentucky, owned and operated by the plaintiffs, both out-of-state companies. Before admission, the district court appointed the son as the woman’s guardian, granting him limited power to agree to contracts and execute instruments on her behalf.
The son signed a contract with the nursing home which included an arbitration agreement. The arbitration agreement stated that any legal dispute arising out of or relating to the resident’s admission to the facility, or any service, diagnosis, or care of the resident provided by the facility, would be resolved through arbitration. The agreement included language that referred to the resident, all persons whose claim is or may be derived through or on behalf of the resident, and any person who has signed the agreement on the resident’s behalf.
The arbitration agreement was “voluntary”, and the woman’s medical care and admission into the nursing home were supposedly not conditioned on agreeing to arbitrate her claims. The woman stayed in the nursing home for approximately three weeks, during which her son alleges she received substandard care, causing her serious medical issues. She was hospitalized, but her ailments proved too much to overcome, and she passed away about a week after leaving the nursing home.
The nursing home resident’s estate brought a survivor action against the nursing home, and the resident’s son brought a wrongful death action. The nursing home sought to enforce the arbitration agreement, arguing that it covers both the survivor and wrongful death actions.
The Nursing Home Arbitration Debate
The opinion starts by noting that there is a fundamental right to contract in the Constitution, which it used to “substitute their social and economic beliefs for the judgment of legislative bodies.” Not mentioned: the contractual language is forced on people that really have no meaningful choice. So, at a minimum, the court should look to see if the patient had a genuine choice in agreeing to the arbitration provisions. If the agreement was presented as a “take it or leave it” option, with no room for negotiation or modification, the court should find that it was not entered into voluntarily.
But more fundamental is the disparity in bargaining power between the resident or their representative and the long-term care facility. The facility had all the power in the negotiation process. An 85-year-old woman will have a hard time saying I want you to change this agreement. The nursing home holds all of the cards.
The Court’s Opinion
The opinion then turns to the main issue in the case, which is whether the arbitration agreement covers the son’s wrongful death claim. The court notes that in Kentucky, a wrongful death claim is not derivative of a survival action. It is brought to compensate survivors for loss occasioned by the death and not to recover for injuries to the decedent. The claim belongs not to the decedent’s estate but to specified wrongful-death beneficiaries, which include the decedent’s children.
The opinion then notes that a person may bring both a wrongful-death claim on his own behalf and a survival claim on behalf of a decedent in the same action. When a guardian signs an arbitration agreement purely on his ward’s behalf without indicating that he is also signing in his individual capacity, he typically does not agree to arbitrate his wrongful-death claim (if he’s one of the ward’s statutory heirs) in the event his ward dies.
However, if the agreement’s language makes the guardian a party to the contract, he agrees to arbitrate his own wrongful-death claim as well as his ward’s claims. In this case, the arbitration agreement provides that the term “Resident” also refers to “any person who has signed this Agreement on the Resident’s behalf.” The son signed the arbitration agreement on his mother’s behalf, so by the contract’s terms, he is a “Resident.”
The idea of the son being a “Resident” is idiotic. It certainly is misleading to the person executing the document. But this nuances did not gain this courts interest.
So under the agreement, the nursing home and resident agree that any claim relating to the resident’s care be resolved by arbitration. As a party to the arbitration agreement, the son is bound to arbitrate any claim he may personally have arising out of the nursing home’s care for his mother, including wrongful death.
Authority to Bind Plaintiff Is a Winning Hand
One argument against forced arbitration is that the litigant may not have been properly made a party to the admission agreement. Cours have found in many cases that the signature of a spouse or adult children without proper evidence of authority was insufficient to bind the patient to arbitration. This argument is most successful in wrongful death cases where the the patient signs the admission agreement that binds their estate claim but not the wrongful death claims that are brought in the victim’s own capacity.
The facts here are the exact opposite of this common fact pattern – the son bound himself but had no authority to bind his mother. So the court found that although the son lacked authority under Kentucky law to bind his mother to arbitrate her claims, there is no contention that he lacked authority to bind himself to arbitrate his own claims. As in a previous case involving a nursing home and a wrongful death claim, the son must arbitrate his wrongful-death claim because he is a party to the arbitration agreement.
So the son could not bind the mother as a resident but could bind himself. So what are we left with? Probably parallel litigation that will make the parties incur additional costs, spend additional time on the case, and cause them general annoyance. This kind of piecemeal litigation is an inevitable consequence of the Federal Arbitration Act’s policy that strongly favors arbitration. So what we have is a mess. A simple rule would be no arbitration clauses in nursing home contracts.
Kentucky Nursing Home Law
As the population continues to age, the number of nursing home facilities and residents in Kentucky continues to grow. Unfortunately, with this growth comes an increase in cases of nursing home neglect and abuse, leading to serious injuries and even death for vulnerable residents. As a personal injury lawyer, it’s important to understand the unique challenges and laws surrounding nursing home lawsuits in Kentucky.
Kentucky law requires nursing homes to provide adequate care and treatment to their residents, including appropriate medical care, hygiene, nutrition, and safety. However, many nursing homes fail to meet these standards, leading to injuries and deaths that could have been prevented. Some common examples of nursing home neglect and abuse include:
- Failure to properly monitor and assist residents with mobility, leading to falls and fractures
- Failure to provide adequate nutrition and hydration, leading to malnutrition and dehydration
- Failure to properly manage and administer medication, leading to overdoses or other adverse reactions
- Failure to properly maintain and sanitize the facility, leading to infections and illnesses
- Physical, sexual, and emotional abuse by staff members or other residents
If you suspect that a loved one has suffered from nursing home neglect or abuse, it’s important to take action quickly. The first step is to report your concerns to the nursing home administrator and the Kentucky Cabinet for Health and Family Services. If the issue is not resolved, you may need to consult with a personal injury lawyer who has experience handling nursing home cases.
Kentucky Nursing Home Lawsuits Are Malpractice Claims
In Kentucky, nursing home lawsuits fall under the category of medical malpractice. This means that the plaintiff must prove that the nursing home breached the standard of care and that the breach caused the resident’s injuries or death like any other malpractice claim. In addition, there are additional hoops to jump through and challenges created by laws and regulations that apply to nursing home lawsuits in Kentucky, including:
- A one-year statute of limitations for filing a medical malpractice lawsuit
- Mandatory arbitration agreements that we talk about above in many nursing home contracts that can limit some plaintiffs’ ability to pursue a lawsuit in court
- Caps on damages that can be awarded in medical malpractice cases
In Kentucky, the statute governing nursing home lawsuits is KY.REV.STAT.§216.515. This statute requires that any claim against a long-term care facility, such as a nursing home, be filed within one year of the date of the alleged incident. Additionally, the claimant must give written notice of their intent to sue at least sixty days before filing the claim.
Kentucky law requires nursing homes to carry liability insurance with a minimum coverage amount of $1 million per occurrence and $3 million in aggregate. This insurance is intended to provide financial protection to nursing homes in the event of a lawsuit.
Kentucky Nursing Home Verdicts & Settlements
Below are summaries of verdicts and reported settlements in Kentucky nursing home negligence cases.
$2,213,030 Verdict (Kentucky 2020): The decedent, 92-year-old female, was admitted to the defendant nursing home with a diagnosis of Alzheimer’s with agitation. The lawsuit alleged that the nursing home staff failed to transcribe a physician’s order for a psychiatric consultations and failed to ensure that it was performed, then improperly discharged her. As a result of this failure, the plaintiffs claimed that the decedent wound up in numerous physical altercations and eventually died. This verdict is very high for a wrongful death involving a 90-year-old.
$67,167 Settlement (Kentucky 2019): 81-year-old female resident at nursing home in Prestonburg, KY, suffered serious bed sores and other personal injuries which eventually resulted in her death. The lawsuit alleged that the injuries were caused by negligent care at the nursing home. The case settled.
$28,550,000 Verdict (Kentucky 2017): A 60-year-old male, reportedly suffered fractures of his right hip and femur, malnutrition, and renal failure caused by severe dehydration and fecal impaction after suffering a fall while he was a resident in the McCracken Nursing and Rehabilitation Center. The lawsuit alleged that the nursing home staff were grossly negligent in their care of the patient and violated the statutory requirements for care provided by nursing homes in Kentucky. The verdict included $25 million in punitive damages.
$1,080,000 Verdict (Kentucky 2015): A nursing home resident fell from his wheelchair, fractured his neck, and was placed in a halo, the pin sites on the halo allegedly became infected, and he reportedly was not provided adequate nutrition and hydration.