The Legal Intelligencer had an interesting article about recent Pennsylvania cases involving mandatory arbitration in the nursing home context. The author comments that the Court considered the fairness of the circumstances of the signing of the arbitration clauses.
In Wisler v. Manor Care, for instance, the Superior Court decided Sept. 8 that an arbitration agreement signed by the patient’s son, as power of attorney, was invalid for purposes of compelling arbitration in a survival act claim by the patient’s estate.
In Taylor v. Extendicare, the same court chose to favor consolidation of a case instead of bifurcating it to arbitrate one of multiple claims.
In Bair v. Manor Care, the Superior Court decided an arbitration agreement was unenforceable because a representative for the nursing home had not signed it.
In Wert v. Manorcare, the justices agreed to consider whether the intermediate court correctly voided the entire arbitration agreement, because the designated arbitrator entered a consent agreement that it would no longer arbitrate consumer claims, and whether the court could ignore evidence that the party seeking to void the agreement did not read it, as an element of deciding whether the arbitrator designation was integral to the contract.
Pending before the Superior Court for reconsideration is Macpherson v. Magee Memorial Hospital, which deals with procedural and substantive unconscionability of an arbitration agreement as one of the main subjects.
The U.S. Supreme Court decided Marmet Health Care v. Brown in 2012, holding that the FAA pre-empted a West Virginia prohibition against predispute arbitration agreements involving nursing homes. Nursing home defendants are “using Marmet to basically say no matter what the situation is, you need to enforce these arbitration agreements, and I think that’s a complete misreading of the Marmet decision,” attorney Trzcinski said.
Brian D. Reddick of Reddick Moss, a former attorney for nursing home operator Beverly Enterprises, who now heads a national firm that handles nursing home litigation, said he has noticed a nationwide uptick in cases related to nursing home arbitration agreements, particularly in the past six to eight years.
“As the nursing homes get called out on agreements that are clearly one-sided or unfair, they’re forced to revise their agreements,” said Trzcinski. “They get called out and a particular part gets struck down. … Then they have the attorneys revise the contracts and substitute other unfair conditions.”