Arbitration clauses in nursing home agreements attempt to include wrongful death but the majority of states do not hold that the beneficiaries are bound by the agreement.  The Pennsylvania Supreme Court has recently addressed this issue in Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016). In that case, the resident’s family members sued the nursing home for the wrongful death of their loved one and as representatives of the resident’s estate.

In the wrongful death action, the plaintiffs sought compensation for the emotional harm they sustained from losing their loved one prematurely. The survival suit relates to the resident’s compensation for pain and suffering and other harms sustained from the neglect.

The agreement between the resident and the nursing home contained an  arbitration clause that covered any resident’s suit against the nursing home. However, this clause applies to the survival action only, but not to the wrongful death suit filed by the nonparties to the agreement.

The wrongful death action must go to court. The survival action goes to arbitration.

The Court reasoned that –

“We recognize that Rule 213(e) is a procedural mechanism to control case flow, and does not substantively target arbitration. However, the Supreme Court directed in Concepcion that state courts may not rely upon principles of general law when reviewing an arbitration agreement if that law undermines the enforcement of arbitration agreements. We cannot require a procedure that defeats an otherwise valid arbitration agreement, contrary to the FAA, even if it is desirable for the arbitration-neutral goal of judicial efficiency. See Concepcion, 563 U.S. at 351, 131 S.Ct. 1740 (“States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”). Declining to bifurcate the wrongful death and survival actions against Extendicare in the interest of efficiency would nullify the ADR Agreement, a result not permitted by the Supreme Court’s FAA jurisprudence. …. Collectively, Moses H. Cone, Dean Witter and KPMG instruct that the prospect of inefficient, piecemeal litigation proceeding in separate forums is no impediment to the arbitration of arbitrable claims. Indeed, where a plaintiff has multiple disputes with separate defendants arising from the same incident, and only one of those claims is subject to an arbitration agreement, the Court requires, as a matter of law, adjudication in separate forums.”

 

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