Arbitration & Mediation

Tennessee Court Denies Arbitration for Nursing Home Resident (signed by 2 daughters)

By Christopher B. Hopkins, Esq.

The case of Nina McKey, Administratrix of Estate of Ruby Irene Brewer v. National Healthcare Corp et al., out of Tennessee, gives us yet another example of a court declining to enforce arbitration in the nursing home setting when signed by a family member who has not been designated or appointed to sign on behalf of the resident. This case turns on specific Tennessee law but does show the court is looking at other familiar cases from other states. That said, we're curious why there is no discussion of enforcement through arguments such as third party beneficiary status.

In this case, the adult daughters sign the resident into the facility and, in doing so, agree to arbitration. Neither daughter has any written authority to sign on behalf of the resident although all sides admit the resident was incompetent. There is an errant form in the nursing home paperwork that says the adult children could sign for the resident. Both trial and appellate court declined to enforce.

Avoiding a long discourse on Tennessee statutory law, the court decided that the requirements were not met because their statute required physician-confirmation of incompetence and some documentation in the physician's records to that end. None existed here.

The court looked at the Texas decision, In Re Ledet, but declined to follow because Texas has different statutory rules. Likewise, the court found that the Mississippi case of Picayune v. Brown was factually different since, therein, there was a physician note regarding incompetence. No reference was made, however, to Florida's Fourth DCA's decision in Blankfeld v. Richmond Health.

The take-away message appears to be that, depending upon the controlling state statute, the greatest likelihood of enforcing arbitration signed by a statutory surrogate is to have written confirmation from a physician that the resident/ward's is incompetent.

Full post as published by Florida Arbitration Law on October 08, 2008 (boomark / email).