May 14, 2022

Jacqueline Kingston van Engelen (“Jackie”) went to Emory Healthcare, Inc.’s Emory Johns Creek Hospital with vaginal bleeding on July 10, 2019, while she was 31 weeks pregnant. She was discharged but returned the next morning on July 11, 2019, this time with vaginal bleeding and contractions. When Jackie was admitted to the hospital on July 11, 2019, she signed two identical copies of Emory’s three-page admission/registration agreement. A signature line for the “Patient, Parent, Guardian or Authorized Representative” followed the alternative-dispute-resolution provision. Jackie signed her name under the provision in both agreements presented to her during her admission.

The last page of each agreement also contained a signature line for the “patient or patient representative.” Directly under this line was a line to designate the “Relationship of Representative to Patient.” Jackie signed her name on the line designated for the “patient or patient’s representative” on both documents at 7:24 a.m. and 7:35 a.m., respectively, but on neither agreement did she otherwise indicate her relationship to the patient.

The medical providers were unable to stop Jackie’s labor, and baby Isabelle van Engelen was born at 12:26 a.m. on July 12, 2019. Following Isabelle’s birth, on the agreement signed by Jackie at 7:24 a.m. on the previous day, the hospital placed a sticker in the upper right-hand portion of each page, which contained the designation “Kingston, J G A” and reflected a date of birth of July 12, 2019; age of 0; female sex; and admission date of July 12, 2019.

Isabelle suffered cardiac arrest in the NICU after an endotracheal tube was placed in her esophagus rather than her trachea for several hours, causing her lungs to collapse. Isabelle never left the hospital and she died two weeks later after suffering irreversible brain damage due to oxygen deprivation.

In November 2020, Jackie and her husband filed a wrongful-death action on behalf of Isabelle, alleging medical malpractice. Emory filed a motion to dismiss and compel arbitration, arguing that the July 11, 2019 agreement signed at 7:24 a.m. compelled arbitration of Isabelle’s claims raised in the complaint. The plaintiffs opposed the motion, contending that the arbitration clause did not apply to claims raised on behalf of Isabelle, but only those of Jackie.

The Court of Appeals of Georgia, in its opinion dated March 1, 2022, held: “we agree with the trial court that the terms of the arbitration agreement are clear and unambiguous, and a plain reading of the contract fails to show that it was applicable to claims arising from the treatment of baby Isabelle. Indeed, a comparison of the agreements Jackie signed upon her admission to the hospital on July 11, 2019 (which were identical), shows the only difference between the two agreements is that one was signed at 7:24 a.m. and the other at 7:35 a.m. The fact that these arbitration agreements were signed minutes apart or that Jackie signed them while in pre-term labor in no way alters the identical language in both. Instead, looking only at the “plain and unambiguous” terms of the agreements Jackie signed, the two agreements show no distinguishing factors to materially alter the terms upon which she agreed. The key here is that Jackie’s signature on both agreements unambiguously identifies that they were signed in her personal capacity, not as a representative for her unborn baby.”

“But importantly, nothing in either agreement indicates that Jackie was signing as her unborn child’s representative. Indeed, Jackie did not complete the specific line to designate the “Relationship of Representative to Patient” on either agreement. Moreover, nowhere on either agreement is Jackie’s unborn child identified as the actual patient, and the belated addition of a somewhat vague patient-identification sticker to the 7:24 a.m. agreement does not alter this fact.”

The Court of Appeals of Georgia held: “In sum, because the clear and unambiguous terms on the face of each agreement show that Jackie signed the contracts in her personal capacity, not in a representative capacity on behalf of her unborn baby, we affirm the trial court’s denial of Emory’s motion to dismiss and compel arbitration.”

Source Emory Healthcare, Inc. v. Engelen, A21A1562.

If you or your baby suffered a birth injury (or worse) during labor and/or delivery or shortly after birth in Georgia or in another U.S. state, you should promptly find a birth injury lawyer in your state who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.

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