Published: June 24, 2016
By: E. Richard Ogrodowski
Recently, and as previously discussed in this blog, Pennsylvania state courts have found that an arbitration provision in an admission agreement of a nursing home operator or skilled nursing facility does not waive the right to a jury trial as to a wrongful death claim or survival claim.
Differentiating from recent decisions by other federal district courts in Pennsylvania permitting the wrongful death claim and survival claim to be severed when the nursing home or skilled nursing facility contract contained an arbitration agreement, the Honorable Arthur J. Schwab of the United States District Court for the Western District of Pennsylvania held in Grkman v. 890 Weatherwood Lane Operating Company, LLC, 2016 WL 3057656 (May 31, 2016), that wrongful death and survival claims against a nursing facility operator would proceed to a jury trial, despite the plaintiff signing, on behalf of his father, an admission agreement with an arbitration clause.
In Grkman, the plaintiff’s father was admitted to the defendant’s skilled nursing facility with an ulcer. Over several months, the ulcer worsened, which allegedly caused additional health complications leading to the death of the plaintiff’s father. So that his father could be admitted to the skilled nursing facility, plaintiff, as Power of Attorney, signed an Admission Agreement containing a clause requiring binding arbitration for any dispute or controversy related to plaintiff’s father’s care at the facility.
Following his father’s death, Plaintiff filed a lawsuit in the United States District Court for the Western District of Pennsylvania alleging claims for wrongful death and survival. Pursuant to the terms of the arbitration clause in the Admission Agreement, the defendant skilled nursing facility filed a motion to dismiss the claims.
In denying the motion to dismiss, Judge Schwab found that by applying general agency principles, the plaintiff, as the Power of Attorney, had the right to sign the agreement. By signing the agreement on behalf of his father, plaintiff waived his deceased father’s right to a jury trial as to the survival claim. Judge Schwab also found, however, the plaintiff did not waive his right to file a wrongful death action, which claim belongs to plaintiff and not his deceased father.
Following the above findings, Judge Schwab noted the Admission Agreement contained a choice of law provision stating that the agreement shall be interpreted according to the laws of Pennsylvania. Since Pennsylvania substantive law precludes severance of the wrongful death claim and survival claim, Judge Schwab concluded that both claims must be tried before a jury.