February 4, 2013

162017_132140396847214_292624_nBy its decision filed on January 24, 2013, the Supreme Court of Appeals of West Virginia (“Supreme Court”) refused a nursing home’s attempt to enforce an agreement to arbitrate a nursing home resident’s nursing home malpractice case. The Supreme Court held, “West Virginia Health Care Decisions Act, W. Va. Code § 16-30-1, et seq., authorizes a health care surrogate to make health care decisions on behalf of the incapacitated person for whom the surrogate has been appointed….upon the determination that a patient is incapacitated, the patient’s physician may select a health care surrogate to make medical decisions for the incapacitated patient….the health care decisions that a health care surrogate is authorized to make on behalf of the incapacitated person for whom the surrogate has been appointed are “decision[s] to give, withhold or withdraw informed consent to any type of health care, including, but not limited to, medical and surgical treatments, including life-prolonging interventions, psychiatric treatment, nursing care, hospitalization, treatment in a nursing home or other facility, home health care and organ or tissue donation”….[f]rom both the statutory pronouncements defining and clarifying the scope of a health care surrogate’s authority and the actual form used by physicians to select a health care surrogate, it is clear that a decision to arbitrate disputes regarding care provided by a nursing home to an incapacitated person is not within the ambit of a health care surrogate’s authority….we therefore hold that an agreement to submit future disputes to arbitration, which is optional and not required for the receipt of nursing home services, is not a health care decision under the West Virginia Health Care Decisions Act, W. Va. Code § 16-30-1 et seq.”

The Facts Of The Case Decided By The Supreme Court

On September 7, 2009, the nursing home resident’s physician determined her to be indefinitely incapacitated and incapable of making her own medical decisions; therefore, the physician selected the resident’s daughter to serve as her health care surrogate. At the end of the “Checklist for Surrogate Selection” completed by the physician, the daughter consented to the “Acceptance of Surrogate Selection” portion of the document, which stated “I accept the appointment as surrogate for [my mother] and understand I have the authority to make all medical decisions for [my mother].”

On September 10, 2009, the resident was admitted to the nursing home to receive nursing home care. During the admissions process, the daughter completed and signed numerous documents, including a “Resident and Facility Arbitration Agreement” (“Arbitration Agreement”), which required that “any legal dispute, controversy, demand or claim . . . that arises out of or relates to the Resident Admission Agreement or any service or health care provided by the Facility to the Resident shall be resolved exclusively by binding arbitration.” The Arbitration Agreement further provided that “THE PARTIES UNDERSTAND AND AGREE THAT BY ENTERING THIS ARBITRATION AGREEMENT THEY ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN A COURT OF LAW BEFORE A JUDGE AND A JURY.” The Arbitration Agreement indicated that acquiescence thereto was not a precondition of the resident’s admission to the nursing home or her receipt of services therefrom and that she could rescind the Arbitration Agreement within thirty days of its signing.

For the next ten months, the resident resided at the nursing home. During the course of her residency there, the resident allegedly sustained pressure sores, infections, dehydration, malnutrition, and other injuries which allegedly contributed to her death on July 31, 2010.

On December 1, 2011, a wrongful death suit was filed against the nursing home alleging, among other things, that its negligent care of the resident caused and/or contributed to her death. The nursing home then filed a motion to dismiss the suit and to enforce the Arbitration Agreement that was signed by the resident’s daughter upon the resident’s admission to its facility. By order entered March 28, 2012, the circuit court denied the nursing home’s motion and concluded that the subject Arbitration Agreement was unenforceable. The nursing home thereafter appealed the circuit court’s decision to the Supreme Court.


If you or a loved one suffered injuries (or worse) during a nursing home stay in West Virginia or in another U.S. state, you should promptly consult with a West Virginia medical malpractice lawyer (West Virginia nursing home claim lawyer) or nursing home claim lawyer in your state to investigate the claim and represent the injured person in a nursing home claim, if appropriate.

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