It’s very likely you can avoid arbitration.
BUT, I urge you to read this entire page and to contact a nursing home attorney if you want to obtain a definitive answer to this question.
Laws concerning arbitration are regularly evolving due to legislative changes and decisions of the California and United States Supreme Court.
I offer free and confidential case evaluations of all nursing home neglect and abuse cases. You can contact me by calling or clicking here and filling out my case evaluation form.
Arbitration of Wrongful Death Claims in Nursing Homes
Generally, when a patient dies from neglect and injuries in a nursing home, the patient’s family members bring a case for wrongful death against the nursing home facility.
Wrongful Death Claimants
Typically, in California, the following persons (or their personal representatives) may bring a case for wrongful death due to neglect at a nursing home.
California Code of Civil Procedure 377.60
- Domestic partners;
- Grandchildren (if the deceased person’s children are also deceased);
- Other minor children (such as stepchildren) who were dependent on the deceased for at least 50% of their financial support; and
- Anyone else who would be entitled to the deceased’s property under California’s law.
Arbitration of Nursing Home Claims – Generally
When a patient enters a nursing home they typically sign an admission agreement. That agreement often (but not always) includes an arbitration agreement.
When it includes an arbitration agreement, the nursing home must follow strict state and federal laws about the contents and presentation of that arbitration agreement.
When the nursing home fails to follow those rules, then the patient or the patients family members (when the patient has died) can very likely avoid arbitration on those grounds.
Arbitration of Nursing Home Claims – Wrongful Death Claimants
However, in a case where the patient has died, the nursing home patient’s wrongful death claimants likely have additional defenses to arbitration.
I have included the scenarios in which these issues typically arise and addressed each below.
Scenario One – Patient is Incapacitated No Power of Attorney
If the patient is incapacitated, then the patient’s spouse, or child, or another responsible person often sign the admission agreement/arbitration agreement on their behalf.
If the person that signed the arbitration agreement did not have a power of attorney or health care directive giving them the authority to execute the agreement, the arbitration agreement is likely not enforceable.
In that case, you would likely be able to sue the nursing home in Court.
Scenario Two – Patient is Incapacitated Power of Attorney
Another scenario arises where the patient is incapacitated but the person signing the admission paperwork was acting under a valid Power of Attorney.
In that case, the arbitration is still not enforceable against the wrongful death claimant because they were not a party to the agreement.
An heir is not bound by arbitration clause where they signed only in their capacity as power of attorney. Monschke v. Timber Ridge Assisted Living, (2016) 244 Cal.App.4th 583.
In this case, too, you would likely be able to sue the facility in Court.
Scenario Three – Patient is Competent
If the patient is competent when they signed the arbitration agreement, then you could still very likely avoid arbitration.
In 2013, the California Court of Appeals for the Fourth District of California held that a patient’s family members were not bound by an arbitration agreement that specifically referenced wrongful death claims. See, Daniels v. Sunrise Senior Living (2013) 212 Cal.App.4th 674.
The Daniels case resolved a conflict in the law regarding arbitration that I will not go into here, but it is still possible in certain nursing home cases, that arbitration could be enforced against wrongful death claimants, depending on the nature of their claims.
Legal nuances such as this arise often in nursing home cases and particularly around complex issues such as enforcing arbitration agreements.
If your loved one has passed away in a nursing home I STRONGLY URGE YOU TO CONTACT AN ATTORNEY to discuss the specifics of your case. I offer free and confidential case evaluations of all nursing home neglect and abuse cases. Contact me today.