In Wofford v. M.J. Edwards & Sons Funeral Home Inc., (Tenn. Nov. 23, 2015), the Court invalidated the following arbitration agreement:

NOTICES TO PURCHASER/CO-PURCHASER

SEE PART THREE FOR TERMS AND CONDITIONS THAT ARE PART OF THIS AGREEMENT. DO NOT SIGN THIS AGREEMENT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACES. YOU ACKNOWLEDGE RECEIPT OF AN EXACT COPY OF THIS AGREEMENT.

BY SIGNING THIS AGREEMENT, YOU ARE AGREEING THAT ANY CLAIM YOU MAY HAVE AGAINST THE SELLER SHALL BE RESOLVED BY ARBITRATION AND YOU ARE GIVING UP YOUR RIGHT TO A COURT OR JURY TRIAL, AS WELL AS YOUR RIGHT OF APPEAL.

The court correctly held it was unenforceable based on the following undisputed factors:

The consumer was in a distressed state when she signed the contract shortly after her father died, and she was in immediate need of funeral services. The court distinguished this situation from contracts between large construction companies in which two sophisticated parties negotiate the terms of the agreement, including the arbitration provisions.

The disparity of bargaining power between the funeral home and the consumer, and the consumer’s obvious emotional distress led the court to also find the arbitration clause was a “contract of adhesion.” This means the contract was offered on a “take it or leave it” basis with no real opportunity to negotiate. Contracts of adhesion are usually found when the contract is (1) a standardized form; (2) the offering party has superior knowledge about the underlying subject matter; (3) the contract is offered on a “take it or leave it” basis; (4) failing to sign the agreement would have interrupted rendition of services; and (5) because of the type of services involved, choosing another provider would have caused delay, resulting in a difficult choice.

Unconscionable contracts arise when they are one-sided and there is comparatively unequal bargaining power between the parties. The court was also concerned that the funeral home did not explain the impact of waiving the right to a jury.

They was no “meeting of the minds” with respect to the arbitration clause. Though the contract set out the arbitration provision right before the signature line, it also referred to a “Part Three.” The consumer never received “Part Three,” which contained additional information about arbitration.  The court found the parties did not reach an understanding with respect to arbitration because she did not receive “Part Three.”

 

 Woodbriar Health Center will face thousands of dollars in fines for providing substandard care, reports The Boston Globe after a resident died after a worker negligently dropped her.  Mary Meuse suffered two broken legs in the fall. She was taking blood thinners and bled internally from her injuries.

A 21-year-old nursing assistant who had been working at Woodbriar only a few months failed to get another nurse’s help when she used a mechanical lift to move Meuse from her bed to a wheelchair Christmas morning. Most mechanical lifts require at least two people for safe operation, according to the US Food and Drug Administration.

“Although [the nursing assistant] looked in a lot of resident rooms and common areas, she could not find anyone to assist her,” the report states. The nursing assistant “said this was not unusual and in the past when she had asked for help she was told staff ‘were too busy,’ or ‘wait a few minutes but then [they] never show up,’ ” according to the report.

An investigation by state authorities found a widespread breakdown in communications and care at Woodbriar, part of a chain of troubled nursing homes owned by Synergy Health Centers. Investigators concluded that three shifts of nurses learned that Meuse broke her legs in the Christmas Day fall but failed for 24 hours to let her, or her family, know the results. She died Dec. 27.

An X-ray taken at the nursing home revealed within two hours after the accident that Meuse, who told staffers her knees hurt after the episode, had broken bones below both knees, according to the state investigation. But a nurse who read the X-ray report shortly afterward later told investigators, “there was a lot of writing on the report, and to the best of her recollection she thought no fractures were seen.”

A nurse on the night shift reviewed the X-rays, discovered the broken bones, and alerted the day nurse who earlier missed the finding. Upon learning of the injuries, the day nurse called a physician and left a message with his answering service.

The physician told investigators he called the nursing home, but “no one answered his call,” so he instructed his answering service to immediately transfer any call from the nursing home to his cellphone. No one ever called him back, he said.

A nursing supervisor wasn’t told about the broken bones until the next morning, which prompted the supervisor to seek an order to get Meuse to the hospital, the report said.

The nursing home is one of several in Massachusetts owned by Synergy Health Centers in New Jersey. Synergy, the New Jersey company that owns Woodbriar and 10 other Massachusetts nursing homes, has faced mounting citations for substandard care — medication errors, poor infection control, inadequate staff training — since buying its first Massachusetts facility in 2012. The citations concerning the Woodbriar death are among the most serious. Synergy has received other citations for substandard care since 2012.

Helen Mulligan, spokeswoman for the Centers for Medicare & Medicaid Services, said federal regulators are trying to determine the exact fine, but it will range from $250 to $3,000 per day, likely dating back to the Dec. 25 accident.

Read the full story in the Globe .

The U.S. Supreme Court has declined to review a nursing home arbitration case involving Golden LivingCenters and HCR ManorCare Inc. facilities in Pennsylvania.  Golden petitioned the Supreme Court late last year to overturn an October ruling by the Pennsylvania Supreme Court that voided arbitration agreements that relied on the National Arbitration Forum’s code to resolve disputes. The National Arbitration Forum can no longer arbitrate consumer disputes.

The lawsuit, Wert v. ManorCare of Carlisle, was filed by the estate of a neglected nursing home resident whose conditioned worsened leading to her wrongful death during a residency at a Golden facility, following a two-month stay at an HCR ManorCare facility. The suit alleged abuse and neglect at both facilities.

With its refusal to review the Pennsylvania court’s decision, the U.S. Supreme Court joined other state courts that have deemed arbitration agreements unenforceable because they relied solely on the NAF code. At the time of the Pennsylvania Supreme Court’s decision, experts predicted that the case would have “broad implications” for recognizing the “lopsided balance of power” between nursing homes and the consumers they enter into arbitration agreements with.  See full article on McKnight’s.

In a letter sent Tuesday to the Office for Civil Rights of the U.S. Department of Health and Human Services, U.S. Sen. Tom Carper, D-Del., has asked government regulators what, if anything, they’re doing to stop nursing home workers from taking degrading and dehumanizing photos of residents and posting them on social media as referenced in a ProPublica story from last year that identified about three dozen inappropriate posts by employees of nursing homes and assisted living facilities. Some included naked photos and videos of residents, many of whom have dementia.  See details of 37 incidents since 2012 in which workers at nursing homes and assisted-living centers shared photos or videos of residents on social media networks. Read more.

This type of abuse is unacceptable and falls short of our moral obligation to the ‘least of these’ in our society,” Carper, ranking member of the Senate Homeland Security and Governmental Affairs Committee, said in a statement. “We all want our loved ones to receive the quality of care and attention they deserve from the professionals to whom we entrust their care.”

The Office for Civil Rights is the agency that enforces the federal patient privacy law known as HIPAA. It can impose both civil and criminal penalties for violations, but it rarely does so, we reported last year.

Carper asked the office how many complaints it has received related to social media use in nursing homes. He asked how many have resulted in civil penalties or a referral to the Department of Justice. And he wanted to know if the office planned to issue guidance to nursing homes on the use of social media and HIPAA, more formally the Health Insurance Portability and Accountability Act.

In December, ProPublica identified 35 instances since 2012 in which workers at nursing homes and assisted-living centers surreptitiously shared photos or videos of residents, some of whom were partially or completely naked. At least 16 cases involved Snapchat, a social media service in which photos appear for a few seconds and then disappear with no lasting record.

The incidents illustrated the emerging threat that social media poses to patient privacy and, at the same time, its powerful potential for capturing transgressions that previously might have gone unrecorded. Abusive treatment is not new at nursing homes. Workers have been accused of sexually assaulting residents, sedating them with antipsychotic drugs and failing to change urine-soaked bed sheets. But the posting of explicit photos is a new type of mistreatment — one that sometimes leaves its own digital trail.

Since then, we’ve identified two more cases, both involving Snapchat. In January, a former nursing assistant at a Wisconsin assisted-living facility was charged with a felony for allegedly taking a video of a mostly naked resident and posting it on Snapchat. She admitted her action to the facility’s executive director and said “it was immoral and very terribly wrong,” the criminal complaint said.

About the Series

This year, ProPublica has been chronicling how weaknesses in federal and state laws, as well as lax enforcement, have left patients vulnerable to damaging invasions of privacy.

More reporting like this:

  • Nursing Home Workers Share Explicit Photos of Residents on Snapchat
  • HIPAA Helper: Who is Revealing Your Private Medical Information?
  • Few Consequences For Health Privacy Law’s Repeat Offenders
  • New Jersey Psychology Practice Revealed Patients’ Mental Disorders in Debt Lawsuits

And in February, a nursing assistant in Indiana was charged with felony and misdemeanor counts for posting a video of a patient in the shower. According to WNDU TV, the video “depicted an 85-year-old dementia patient naked in the shower while the staff sprayed her with water. Witnesses to the video told supervisors they heard [the aide’s] voice in the recording saying ‘look at this crazy bitch she doesn’t like taking showers.’”

Carper is the second senator to call for a review of the inappropriate posts. In December, Sen. Joe Donnelly, D-Ind., called on the Senate Aging Committee to investigate the issue. “It is troubling and disturbing that some seniors are unwillingly and unknowingly victims of exploitation and abuse on social media by some nursing home workers,” Donnelly, who serves on the aging committee, said in a statement.

In December, we reported that the Office for Civil Rights had not penalized any nursing homes for violations involving social media or issued recommendations to health providers on the topic.

McGraw expressed outrage when told about the incidents. “If we don’t have pending investigations on any of these cases … they would be candidates for further inquiry from our end,” she said, adding that the office also should issue guidance on social media and the privacy law.

Kayla Brandon wrote a great article about social media and treatment of vulnerable adults in nursing homes.  In recent months, there have been instances where caretakers in nursing homes were posting humiliating and downright disrespectful photos of elderly residents on Snapchat.  As ABC 10 News reported, two employees at a San Diego elder care facility posted a video on the social media app of what appears to be a partially nude male patient getting in the shower as the two females mocked him.

 Since then, ProPublica looked into the matter and found at least 35 instances that became public in the past four years involving employees who shared images or videos of residents.  Some of the imagery put on blast involved naked or partially naked elderly patients.  Nearly 46 percent of the reported occasions involved Snapchat, a messaging app that allows images and videos to be shared for a brief amount of time before disappearing.

It appears as though these sorts of things aren’t uncommon and actually might be underreported due to how prevalent dementia is in the nursing home community. District Attorney of Middlesex County, Mass., Marian Ryan, tells ProPublica:

“Something hasn’t happened now unless there’s a selfie or Facebook posting about it. The use of social media is just pervasive across every aspect of society.”

Former Indiana nursing assistant Taylor Waller served three days in jail after posting a photo of a resident’s bottom on Snapchat. However, she explains that it didn’t stem from a place of wickedness and says the nursing home “blew everything out of proportion.”

Instead, Waller believes we need to focus on the real issues plaguing elderly nursing home residents:

There is so much abuse that goes on. Nursing homes are so short staffed. Every facility I worked in, every time I went in, residents would be soaked from head to toe in pee and they sat in it for hours. They were treated like animals. I understand taking pictures is bad but there are so many worse things that need to be taken care of, too.”

Mindy Mench’s grandmother-in-law, Janet Hartranft, was filmed on the toilet using Snapchat at a Michigan nursing care facility.  She explains that respecting our elders in 2016 is essentially nonexistent:

These people, our older generation, have served, whether they were a vet or not, they have served in our communities and in our society. Look what you’re doing to them, look how you’re treating them. It’s taking advantage of the weak and it’s sick.”

In the U.S. alone, there are 1.3 million elderly people living in nursing homes.

The National Center for Elder Abuse reports, abuse in assisted living and nursing care centers is on the rise. Their study shows that 7-10 percent of residents reported abuse, but that number could be much higher.

Those who are harmed in any way by their caretakers or nurses have a 300 percent higher risk of death than those who go unharmed.

The Daily Freeman reported that Claire Wieland, an employee at the Livingston Hills Nursing and Rehabilitation Center, has admitted to forging and cashing nearly $12,000 in checks from the facility’s patient accounts, state Attorney General Eric Schneiderman said.  Wieland pleaded guilty to one count of felony possession of a forged instrument.

A resident trust account is maintained at all nursing homes for the benefit of their residents.  These personal funds are kept in a single account, as if they were held at a bank; and individual records are kept for the benefit of each resident; and a small amount of cash is kept on hand at the facility for daily use by the residents.

Wieland was responsible for submitting requests to have checks drawn for residents who requested funds.  Wieland admitted that, between April 24, 2013, and Feb. 6, 2014, while employed as a receptionist, she knowingly possessed multiple checks, drawn on the Livingston Hills Nursing and Rehabilitation Center patient fund account, that bore the forged endorsements of the payees on the check. Wieland also admitted that, during the same period, she cashed the checks bearing the forged endorsements and kept the proceeds.

As part of her plea agreement, Wieland will be sentenced on June 20 to a prison term of no more than three years. She paid restitution in the amount of $11,600 at the time of her guilty plea.

The Hutchinson News reported on the tragic and preventable death of Anna Mae Yocham at Golden Plains Rehabilitation Center LLC.  Yocham was supposed to be on a pureed diet but the nursing home staff gave her a peanut-butter-and-jelly sandwich on Oct. 10, 2014 which caused her to choke and her wrongful death.

The Kansas Department for Aging and Disability Services, on behalf of the U.S. Department of Health and Human Services, issued a Nov. 20, 2014, statement of deficiency to Golden Plains and cited the Oct. 10 event. Medicare’s website shows a federal fine of $40,838 was assessed on Nov. 20, 2014, too.

The lawsuit names Golden Plains Rehabilitation Center LLC; its Illinois-based corporate manager, William Rothner; and Atied Associates LLC, the Illinois-based company that “owned, operated, managed, maintained, and/or controlled” Golden Plains at the time of Yocham’s death.

 The nursing facility came under new management Feb. 1, 2015. It is called Diversicare of Hutchinson and is one of six Diversicare sites in Kansas. The administrator of Diversicare of Hutchinson, Robin Saffle, assumed her role in 2015. Just weeks ago, Diversicare also became owner of the nursing facility on East 23rd Avenue.

Yocham was a homemaker who lived most of her life in Hutchinson. She moved into Golden Plains in 2011 and was 73 years old when she died three years later. Yocham’s granddaughter, Rebecca Sorenson, and Yocham’s brother, Lewis Wohlford, administrator of the estate, are the plaintiffs.

They claim:

  • Yocham had severe cognitive impairment and was “entirely dependent” upon staff for her safety.
  • She required supervision for eating and received a mechanically altered diet, such as pureed food and thickened liquids.
  • Three different documents dated in 2014 contained references to her difficulty in chewing and/or swallowing and her diet. One of those, the nutritional status review dated May 31, 2014, and signed by the registered dietitian at Golden Plains, ordered that Yocham receive a “puree diet.” Golden Plains’ “diet education binder” said peanut butter was a food to avoid for someone on a pureed diet.
  • A staff member making snacks for residents made and gave Yocham the sandwich, even though the person “knew” Yocham was on a pureed diet due to difficulty swallowing. Staff had “’regularly’” given peanut-butter-and-jelly sandwiches to Yocham as snacks, even through they knew it was forbidden by her diet.
  • Staff discovered Yocham coughing and making no sound. They asked if she was choking and she nodded yes. Staff began the Heimlich maneuver and two pieces of food, not chewed well, came out. Staff performed a finger swipe in her mouth and found no more food. She began to clear her throat and was given “thickened water” to sip. She became unresponsive and her skin turned blue.
  • Staff performed the Heimlich maneuver again, and then placed her on the floor. She had no pulse and a staff member who was not CPR-certified initiated CPR. The EMS also was notified and Yocham was taken to the hospital.

McKnight’s reported the following:

New quality measures for skilled nursing facilities will be introduced in the coming months, Centers for Medicare & Medicaid Services officials said during an Open Door Forum call for providers.

Data for six new quality measures — some based on Medicare claims, others on MDS data — will be added to Nursing Home Compare beginning in April. The new measures, bound to make providers’ jobs more complicated, are:

  • Percentage of short-stay (stays of less than or equal to 100 days) residents who have had an outpatient emergency room visit (Medicare claims-based)

  • Percentage of short-stay residents who were successfully discharged to the community, and did not die or were readmitted to a hospital or skilled nursing facility within 30 days of discharge (Medicare claims-based)

  • Percentage of short-stay residents who were re-hospitalized after SNF admission, including observation stays (Medicare claims-based)

  • Percentage of short-stay residents who made made improvement in physical function and locomotion (MDS data-based)

  • Percentage of long-stay (stays of greater than or equal to 101 days) residents whose ability to move independently worsened (MDS-based)

  • Percentage of long-stay residents who received an anti-anxiety or hypnotic medication(MDS-based)

“We believe that these measures will be useful to consumers and to nursing homes as they provide important information about quality of care outcomes that we really haven’t been able to cover previously on Nursing Home Compare,” said Ed Mortimore, technical director of survey and certification at CMS, during the call.

Five of the six new measures will be phased in to the Five-Star Quality Ratings systems over a nine-month period, beginning this July. The measure on anti-anxiety and hypnotic medication use will be left out of the Five-Star system due to concerns about specificity and appropriate thresholds for star ratings.

The information used for the new measures will use a year of data up to the beginning of July 2015. Providers will receive a preview of their data for the measures in April, Mortimore said.

Click here to read more about the new quality measures.

The Open Door Forum call also included a push for providers to voluntarily submit electronic staffing data ahead of the July 1 start of mandatory filing, as well as an update on the government’s research into alternative payment methods for SNFs. The ongoing research has been narrowed down to focus on resident characteristics, rather than service use, officials shared.

The Augusta Chronicle reported another lawsuit against national for-profit chain Pruitthealth and its facility Pruitthealth-Augusta Hills nursing home for negligent care.  Anna Ebenroth filed the Richmond County Superior Court lawsuit Feb. 17 on behalf of her mother’s estate.

According to Ebenroth’s lawsuit, her mother, Mary Ann Waltz, was admitted to the home for long-term care. Waltz was a high risk for falling and unable to get into or out of a wheelchair without assistance, the suit states.

On Feb. 20, 2014, while being pushed by caregivers in her wheelchair, Waltz suffered a fall out of her wheelchair and broke her left leg. In addition to a trip to the emergency room that day, Waltz was hospitalized again March 2, 2014, and needed surgery for a pressure ulcer, malnutrition and urinary tract infection, says the lawsuit, which seeks compensatory and punitive damages.

The South Carolina Court of Appeals issued a decision in Thompson v. PruittCorp et al. confirming the trial court’s denial of a motion to compel arbitration.  A big win for justice in South Carolina.

On January 11, 2011, Respondent, Mae Ruth Davis Thompson (Daughter), and her brother, Andrew Phillip Davis (Son), had their mother, Eula Mae Davis (Mother), transferred from Piedmont Medical Center to a nursing home facility owned and operated by UniHealth Post Acute Care-Rock Hill (UniHealth). A UniHealth employee presented an Admission Agreement, an Arbitration Agreement (AA), and several other documents to Son for his signature on behalf of Mother, who suffered from dementia.

Within five hours of being admitted to UniHealth, Mother died as a result of falling out of a bed with a malfunctioning side rail. Subsequently, Daughter filed a wrongful death and survival action against UniHealth. UniHealth filed a motion to dismiss Daughter’s action and to compel arbitration of Daughter’s claims or, in the alternative, to compel arbitration and stay Daughter’s action.

The circuit court denied the motion to compel on the ground that Son did not have authority to execute the AA on Mother’s behalf under either common law agency principles or the Adult Health Care Consent Act, S.C. Code Ann. §§ 44-66-10 to – 80 (2002 & Supp. 2012)).

In Coleman v. Mariner Health Care, Inc., 407 S.C. 346, 350, 755 S.E.2d 450, 453 (2014),, our supreme court held an arbitration agreement signed by the surrogate in that case was separate from the agreement to admit the patient to a health care facility and “concerned neither health care nor payment, but instead provided an optional method for dispute resolution between [the facility] and [the patient or her surrogate] should issues arise in the future.” 407 S.C. at 353-54, 755 S.E.2d at 454. The court further held, “Under the Act, [the surrogate] did not have the capacity to bind [the patient] to this voluntary arbitration agreement.” Id. at 354, 755 S.E.2d at 454.

However, the Act does not confer such authority with respect to an Arbitration Agreement[] such as the one in issue in this case. See Coleman v. Mariner Health Care, Inc., Supreme Court, Opinion No. 27362, filed March 12, 2014. As the Arbitration Agreement does not deal with healthcare decisions, the provisions of the Act do not apply to establish the necessary principal-agent relationship. Id.

To establish apparent authority, the proponent must show (1) “the purported principal consciously or impliedly represented another to be his agent;” (2) the proponent relied on the representation; and (3) “there was a change of position to the [proponent’s] detriment.” Froneberger v. Smith, 406 S.C. 37, 47, 748 S.E.2d 625, 630 (Ct. App. 2013) (quoting Graves v. Serbin Farms, Inc., 306 S.C. 60, 63, 409 S.E.2d 769, 771 (1991)).

Apparent authority to do an act is created as to a third person by written or spoken words or any other conduct of the principal which, reasonably interpreted, causes the third person to believe the principal consents to have the act done on his behalf by the person purporting to act for him.

A third-party beneficiary is a party that the contracting parties intend to directly benefit.” Helms Realty, Inc. v. Gibson-Wall Co., 363 S.C. 334, 340, 611 S.E.2d 485, 488 (2005). However, there can be no third-party beneficiary unless a valid contract exists. See Dickerson, 995 A.2d at 742 (“Before one can enforce a contract, however, whether as a party to the contract or as a third-party beneficiary, there must be a contract to enforce.”). Here, Son was not authorized to execute the AA on Mother’s behalf. Therefore, she could not be the third-party beneficiary of the alleged AA between herself and Appellants.

Here, Daughter is not attempting to enforce the AA on behalf of Mother’s estate. Rather, she has asserted tort claims against Appellants arising out of the patient-provider relationship created by the separate Admission Agreement. Further, Mother’s diminished mental capacity prevented her from assenting to the AA’s terms. Therefore, her estate cannot be bound by the AA. See Drury v. Assisted Living Concepts, Inc., 262 P.3d 1162, 1166 n.5 (Or. Ct. App. 2011) (“[U]nless the third-party beneficiary in some way assents to a contract containing an arbitration clause, the contracting parties have waived the beneficiary’s right to a jury trial without her consent.”).

Initially, we note the recent conflict between the United States Supreme Court and our state courts concerning the application of state law in determining whether a non-signatory is bound by an arbitration agreement. Compare Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630, 632 (2009) (holding that a nonparty to an agreement is entitled to invoke the Federal Arbitration Act (FAA) “if the relevant state contract law allows him to enforce the agreement”), and id. at 631 (“Because ‘traditional principles’ of state law allow a contract to be enforced by or against nonparties to the contract through ‘assumption, piercing the corporate veil, alter ego, incorporation by reference, third-party beneficiary theories, waiver and estoppel,’ the Sixth Circuit’s holding that nonparties to a contract are categorically barred from [FAA] relief was error.” (citation omitted)), with Pearson, 400 S.C. at 289-90, 733 S.E.2d at 601 (decided in 2012 and holding “[b]ecause the determination of whether a non[-]signatory is bound by a contract presents no state law question of contract formation or validity, the court looks to the federal substantive law of arbitrability to resolve the question”). Nonetheless, the doctrine of equitable estoppel does not apply to Mother’s estate under either South Carolina law or federal substantive law concerning arbitrability.

In other words, “[w]hen ‘a signatory seeks to enforce an arbitration agreement against a non-signatory, the doctrine estops the non-signatory from claiming that he is not bound to the arbitration agreement when he receives a “direct benefit” from a contract containing an arbitration clause.'” Id. at 295, 733 S.E.2d at 604 (quoting Jackson v. Iris.com, 524 F. Supp. 2d 742, 749-50 (E.D. Va. 2007)). Notably, in those opinions addressing equitable estoppel in the arbitration context, the nonsignatory’s contractual benefit is not typically an alleged benefit of arbitration such as “avoiding the expense and delay of extended court proceedings” or being “capable of enforcing the [AA],” as touted by Appellants in the present case—rather, the contractual benefit typically arises from another provision of the same contract that includes the arbitration provision. See Pearson, 400 S.C. at 296-97, 733 S.E.2d at 605 (ability to work at the defendant’s hospital facility and receive payment for work); see also Int’l Paper Co., 206 F.3d at 418 (warranty provisions); Jackson, 524 F. Supp. 2d at 750 (entitlement to retain a $150,000 payment pursuant to the contract’s liquidated damages provision); Am. Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 353 (2d Cir. 1999) (lower insurance rates on a yacht and the ability to sail under the French flag); Deloitte Noraudit A/S v. Deloitte Haskins & Sells, U.S., 9 F.3d 1060, 1064 (2d Cir. 1993) (continuing use of a name).

Here, the AA is not incorporated into the Admission Agreement; therefore, Appellants’ assertion that Mother received benefits under the Admission Agreement, i.e., being admitted to the facility and receiving medical care, is of no moment. The two agreements are independent of one another, as reflected in the language of the AA indicating its execution is not a condition for being admitted to the nursing home. Further, any possible benefit emanating from the AA alone is offset by the AA’s requirement that Mother waive her right to access to the courts and her right to a jury trial. Therefore, equitable estoppel under federal substantive law has no application to the present case.

Under South Carolina law, the elements of equitable estoppel as to the party to be estopped are (1) conduct which amounts to a false representation or concealment of material facts, or, at least, which is calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2) intention, or at least expectation, that such conduct shall be acted upon by the other party; and (3) knowledge, actual or constructive, of the real facts. As related to the party claiming the estoppel, they are: (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance upon the conduct of the party estopped; and (3) action based thereon of such a character as to change his position prejudicially. Boyd v. Bellsouth Tel. Tel. Co., 369 S.C. 410, 422, 633 S.E.2d 136, 142 (2006) (emphases added). Here, Mother had dementia prior to being admitted to UniHealth. Therefore, her incapacity prevented her from forming the intent or having the requisite knowledge to mislead Appellants or to assent to the AA’s terms.