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Daytona Beach Legal News - Arbitration

The Law Office of Paul Bernardini

Assited Living Facilies - Arbitration Agreement

Fourth District Court of Appeals found it was an error for the trial court to grant assisted living facility's motion to compel arbitration where terms of arbitration agreement substantially diminish plaintiff's statutory rights under the Assisted Living Facilities Act. The arbitration agreement which provides for arbitration as provided by American Health Lawyers Association alternative dispute resolution rules is contrary to public policy because the AHLA rules provide that "clear and convincing" standard applies to award of consequential, exemplary or special damages. Lopez v. Andies's Inc., 39 Fla. L. Weekly D700 (April 11, 2014)

Arbitration: Beware of what you sign when you put a loved one in a nursing home.

A recent arbitration claim involving the wrongful death of a nineteen year old who had signed an arbitration agreement. Generally speaking, an arbitration agreement is a document where a party agrees to waive or give up their right to a trial by jury and must proceed to arbitration. Generally speaking, nursing home and health care facilities prefer arbitration to trials by jury.

On October 11, 2013, the First District Court of Appeal held the arbitration provision was valid and enforceable even though it meant that there would be a judicial enforcement of a religiously based arbitration agreement that invoked religious principles and, at least facially, involved religious acts such as prayer.

This case points out the danger of signing without reading documents at nursing homes. You are not required to sign an arbitration agreement. You are never required to give up your rights to a trial by jury unless you sign.

A common mistake most of us make is that people believe that arbitration clauses are not valid. In Florida, arbitration clauses are 100% valid if the proper procedures are used.

Likewise, a waiver of liability that is signed by a person before participating in an event is also generally held to be valid.

In fact, in our District, the Fifth District, our Court of Appeals held on October 4, 2013 that an evidentiary hearing was necessary to determine the validity of an arbitration agreement that the husband signed even though his wife, who was the actual resident of the nursing home, did not sign the arbitration agreement. The Fifth District Court of Appeal held that a trial court is required to conduct an evidentiary hearing to determine whether the wife actually consented to the arbitration agreement or to determine whether the husband had the authority to sign on the wife’s behalf. Evergreen Woods v. Robinson.

I think it is helpful to always take such agreements home and think about them before you sign. If you have any particular questions about signing something, always feel free to telephone us at 386-258-3453.

Nursing home durable power of attorney

Another case allowing arbitration regarding nursing home cases is Tampa HCP v. Satan, 36 FL W D2350.

Where a nursing home resident's wife acting under a Durable Power of Attorney signed an Admission Agreement for her husband, and also signed an addendum that provided for arbitration of disputes only in her capacity as a financially responsible party, and not as the resident's representative, the arbitration provision was not enforceable against the resident of the nursing home. Lepisto v. Senior Lifestyle New Port Limited Partnership, 36 FLW D1655 (4th DCA Fla. August 3, 2011).

It is generally better for the injured person to avoid arbitration and it is generally better for the nursing home to have arbitration. Many people sign arbitration agreements without realizing what they signed. This case and the one following indicate how important it is for people to fully understand what they are signing. The sa.'!le applies for nursing homes, hospitals as well as insurance policies regarding uninsured motorist coverage.

For example, a health care power of attorney appointing a nursing home resident's daughter as her health care surrogate did not empower the daughter to consent to arbitration of a dispute with the nursing home. Estate of Irons v. Arcadia Healthcare, 66 So. 2d 3rct 396 (2"ct DCA Fla. 2011 ). On the other hand, some courts enforce harsh provisions of arbitration agreements.

For example, in Florida Carrollwood Care v. Gordon, 36 FLW D1716 2d DCA Fla. August 5, 2011) the Second District held that an arbitration agreements limitation on discovery and a $250,000 limit on noneconomic damages were not sufficient, standing alone, to support a finding of substantive unconscionability and were valid clauses. When dealing with "letters of protection" to doctors, the plaintiff should be very careful and so should their attorney. In Katzman v. Rediron Fabrication, Inc., 36 FL W D 17 4 7 (Fla. 4th DCA), the doctor was required to allow the insurance company to investigate the doctor's charges.

After the auto accident, the plaintiff's lawyer referred the plaintiff to a doctor who entered into a letter of protection. The doctor then performed a controversial and expensive outpatient procedure. The Fourth District held that the trial court did not abuse its discretion allowing the defendant to seek discovery from the physician regarding how often the doctor had ordered the procedure over the preceding four years and what he had charged in litigation and non-litigation cases.

The above information is intended for general purposes only and should not be construed as legal advice.