WV Supreme Court rules on health care surrogate, arbitration cas - WTRF 7 News Sports Weather - Wheeling Steubenville

WV Supreme Court rules on health care surrogate, arbitration case

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Signing an arbitration agreement is not a health care decision under the authority of a health care surrogate, the West Virginia Supreme Court of Appeals recently ruled.

The issue stems back to September 2009 when a physician determined Beulah Wyatt as "indefinitely incapacitated and incapable of making her own medical decisions."

Her physician appointed Wyatt's daughter Nancy Belcher to serve as a health care surrogate. This meant Belcher would make health care decisions for her mother.

Wyatt later was admitted to the McDowell Nursing & Rehabilitation Center. As part of that process, Belcher filled out a facility arbitration agreement, which stipulated that any legal dispute would be taken up exclusively by arbitration, court documents state.

Wyatt's other daughter, Lelia Gresham Baker, asserted that Wyatt sustained pressure sores, infectious dehydration, malnutrition and other injuries and that led to her mother's death.

In December 2011, Baker filed a wrongful death suit against the center. The center filed a motion to dismiss the suit because of the signed arbitration agreement.

However, a Kanawha County Circuit judge denied this motion, saying a surrogate could not waive a constitutional right to trial by jury. The lower court also refused to enforce the arbitration agreement.

McDowell Nursing appealed, arguing Belcher had the authority to sign the arbitration agreement, but Baker said this was not a health care decision.

Justice Robin Davis delivered the Jan. 24 opinion, denying the writ of prohibition requested by the state of West Virginia, Commercial Holdings LLC, Integrated Commercial Enterprises Inc., Manzanita Holdings LLC, Manzanita Management Inc., Lifetree LLC, Wisteria LLC, McDowell Nursing & Rehabilitation Center and Patty Lucas.

"We agree with respondents that the arbitration agreement was not a health care decision and thus Ms. Belcher did not have the authority as a health care surrogate to sign such agreement," Davis wrote.

"From both the statutory pronouncements defining and clarifying the scope of a health care surrogate's authority and the actual form used by physicians to select a health care surrogate, it is clear that a decision to arbitrate disputes regarding care provided by a nursing home to an incapacitated person is not within the ambit of a health care surrogate's authority," the opinion further states.

This is not the first time the state Supreme Court has taken up arbitration provisions.

The state Supreme Court, upon remand from the U.S. Supreme Court, took up three nursing home arbitration cases last year.

In its June hearing, state Supreme Court justices took up the case of Clayton Brown, Jeffrey Taylor and Sharon Marchio against Marmet Health Care Center, Clarksburg Nursing Home & Rehabilitation Center and the Clarksburg Continuous Care Center.

The originally separate cases all asserted negligence resulting in the death of family members. According to the U.S. Supreme Court opinion, plaintiffs signed a contract that included a clause requiring parties to arbitrate all disputes.

The state Supreme Court decided June 13 to overrule its previous ruling, Syllabus Point 21 of Brown I, which states, "Congress did not intend for arbitration agreements, adopted prior to an occurrence of negligence that results in a personal injury or wrongful death and which require questions about the negligence be submitted to arbitration, to be governed by the Federal Arbitration Act."

The court also remanded the Brown case back to Kanawha County Circuit Court for further proceedings, reversing the August 2009 order that dismissed Brown's suit against Marmet Health Care Center.

Justices further remanded the Taylor case back to Kanawha County Circuit Court, reversing the September 2009 order that dismissed Taylor's suit against owners and operators of Marmet Health Care Center.

In the Marchio case, a Harrison County Circuit Court judge certified a question of whether Section 15c of the Nursing Home Act was preempted by the Federal Arbitration Act as reformulated in Brown I. Justices said it was preempted.

"Although this court recently has considered the validity of arbitration provisions in nursing home admission contracts … the instant query appears to present an issue of first impression for this court: is an agreement to arbitrate disputes related to nursing home care a health care decision within the authority granted to a health care surrogate by the West Virginia Health Care Decisions Act," the Jan. 25 opinion states.