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Arbitration Not Compelled in Nursing Home Sexual Assault Case

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By William Peacock, Esq. on October 28, 2013 4:24 PM

The facts of this case are tragic. The victim, a 90-year-old stroke survivor, told her daughter that she needed to be removed from her nursing home, Monterey Pines Skilled Nursing Facility (now known as Cypress Ridge Care Center after a transfer of ownership). Despite her limited ability to communicate, she told her daughter that her catheter had been removed, the nurse call button had been disabled, and her clothing had been taken off by someone the night before.

She remembers her assailant stating, "This is why I love my job."

The victim had bruising on her inner thighs and pelvic region and complained of increased pain in the area. It was later discovered that she contracted genital herpes. Her sole sexual partner, her husband of nearly 70 years, tested negative.

Legal Proceedings

The family sued the nursing home for elder abuse and neglect, negligence, violation of the Patients' Bill of Rights, and asserted successor liability against the nursing home's new owner, after it was purchased by the "Plum defendants."

Due to the mother's age and health, the family asked for trial-setting preference under the Code of Civil Procedure Section 36, which allows the court to speed up the trial date in cases where a party is over 70 years of age and the circumstances warrant such treatment. The defendants opposed the petition and asked the court to enforce the arbitration agreement, which had been signed by the victim's daughter.

No Written Authorization to Waive Arbitration

Both the lower court, and the appellate court, refused to enforce the arbitration agreement, even though the daughter was at least somewhat authorized to make medical decisions for her mother.

Why? For one, the advanced health care directive only provided the power of attorney for "health care decisions," which the court held did not include legal decisions, such as waiving the right to a jury trial through an arbitration clause. Furthermore, the POA only became effective upon a physician's determination that the principal lacked capacity -- no such determination was ever made here (even if it was apparent from the circumstances of the stroke).

One final point: the POA documents actually listed the victim's husband as the agent, with the daughter as the alternate. There is some dispute here as to whether the husband himself had capacity, as he was also recovering from a stroke, but the appellate court deferred to the trial court's findings of fact.

No Ostensible Authorization Through Plaintiff's Conduct

The defendants also argued that the daughter had ostensible authorization to sign such an agreement, but that argument failed as well, as any evidence of authorization must come from the principal. Even though the daughter signed the documents, and acted as if she were authorized to do so, no act of the mother led the defendants to believe that the daughter was so authorized.

Right Call?

Though the defendants here are less than sympathetic, one has to wonder what the consequences of this holding will be. In situations where the principal is disabled, such as through a stroke or dementia, nursing homes have to be extremely vigilant about POAs.

Here, the paperwork gave the daughter authorization to make medical decisions (assuming the primary agent, her father, really was incapacitated). By severing arbitration agreements from "medical decisions," the court is walking a dangerous line -- will nursing homes be reluctant to admit patients who don't have an agent authorized to waive arbitration? And how much will legal paranoia delay admission into and treatment by these homes?

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