November 21, 2012

According to a wrongful death claim filed in Pennsylvania, a nursing home resident had a scheduled appointment on November 3, 2010 with her treating physician for which the nursing home provided her with transportation. The nursing home’s “transporter” pushed the resident in a wheelchair and instructed the resident to lift her feet, which the resident was unable to do as the transporter was advised by a physician’s assistant at the doctor’s office (the resident’s wheelchair, which was provided by the nursing home, did not have footrests for the resident’s feet).

As a result of the resident being unable to lift her feet while being pushed in her wheelchair, her feet became entangled below the wheelchair as she was being pushed causing her to be “catapulted through the air” from the wheelchair and landing on her head and face on the floor, causing severe injuries that led to her death. The transporter was also faulted for failing to use a safety harness supplied by the nursing home while the resident was being pushed in her wheelchair.

At the time of the resident’s admission into the nursing home, the resident signed a “Resident Agreement” which contained the following provision:

Any Dispute controversy arising out of or in connection with under or pursuant to this Agreement shall be determined by arbitration under the then existing rules of the American Arbitration Association, or a mutually acceptable equivalent which determination shall be filed and be conclusive and binding upon the parties hereto and judgment thereon may be entered in any court having jurisdiction. The cost of said arbitration shall be born equally by the parties and be held in Schuylkill County, Pennsylvania.

The issue before the Pennsylvania Superior Court was whether the wrongful death claim brought against the nursing home was covered under the terms of the arbitration provision in the Resident Agreement. The Pennsylvania Superior court stated in its October 23, 2012 decision:

We conclude that to make the leap to include tort liability for the wrongful death of Mary Ryan as encompassed under the terms of the Residential Agreement is far too attenuated. We are mindful of the fact that the arbitration provision at issue herein does not specifically articulate scenarios in which arbitration should apply … Nevertheless, it is clear that the scope of the Residential Agreement primarily governed the financial options and obligations of the residents and their representatives, and included a provision for arbitrating any disputes arising within those areas covered by the agreement … we conclude the arbitration clause at issue … only applies to causes of actions arising from issues governed by the Resident Agreement. Nowhere in said agreement is there a clause governing the standard of medical care to be provided by Pinebrook’s employees. Moreover, the Resident Agreement does not account for liability of Pinebrook based on actions at the facility or off premises at another facility. The mere fact that Resident Agreement included a payment schedule for transporting residents to and from the doctor’s appointment cannot be extended to encompass all claims sounding in tort that may have arisen from such transportation. Had the parties intended such an outcome, the Resident Agreement could have expressly included it. In the absence of such a clause we will not extend the agreement beyond that which was intended by the parties.

Therefore, the instant wrongful death action is a distinctly different cause of action from anything contemplated by the terms of the residential agreement, and as a result Appellee should not be compelled to arbitrate the matter.

Accordingly, because we conclude that the wrongful death action instituted by Appellee does not arise from a dispute involving the Resident Agreement, we affirm the trial court’s August 2, 2011 order denying Pinebrook’s petition to compel arbitration.

Interestingly, the Pennsylvania Superior Court stated in a footnote to its decision:

Additionally, while we need not reach the issue, we find it noteworthy to mention that in the instant matter, the Resident Agreement may be an adhesion contract. “An adhesion contract, according to Black’s Law Dictionary (5th ed. 1979), is a standardized contract form offered to consumers of goods and services on essentially ‘take it or leave it’ basis without affording consumer realistic opportunity to bargain[.]” … The record is inconclusive as to what, if any, bargaining power Appellee or Mary Ryan had in entering into the Resident Agreement and accepting its terms, including the arbitration clause contained in paragraph 27.


If you or a loved one suffered harm while a resident of a nursing home in Pennsylvania or in another U.S. state, you should promptly seek the advice of a Pennsylvania medical malpractice attorney (Pennsylvania nursing home claim attorney) or an attorney in your state to investigate your possible nursing home claim for you.

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