Supreme Court Declines to Review Two Rulings Spurning Nursing Home Arbitration Agreements
decisions that nursing home residents' descendants may bring wrongful
death suits against the facilities despite the existence of signed
Both cases involve daughters who signed arbitration agreements on
behalf of their mothers. After the mothers died, the daughters sued the
nursing home for wrongful death, and the nursing home moved to compel
arbitration. In Ping v. Beverly Enterprises
(Ky., No. 2010–SC–000558–DG, Aug. 23, 2012), Donna Ping was her
mother's attorney-in-fact under a general power of attorney when she
signed the arbitration agreement. The Kentucky Supreme Court held that
because the power of attorney did not authorize Ms. Ping to do more than
make financial, property-related, and health care decisions, the
arbitration agreement was beyond the scope of Ms. Ping's authority and
therefore unenforceable against her mother's estate and wrongful death
In Carter v. SSC Odin Operating Co. (Ill.,
No. 113204, Sept. 20, 2012), Sue Carter signed an arbitration agreement
on behalf of her mother without a power of attorney. The Illinois
Supreme Court ruled that because Ms. Carter signed as her mother's
"legal representative," she had to arbitrate only if she was acting in
her mother's stead in prosecuting the wrongful death claim, which the
court ruled she was not.
The nursing home companies appealed, arguing the Federal Arbitration
Act (FAA) preempts state laws like those in Illinois and Kentucky that
treat wrongful death claims as an independent cause of action. Other
states, such as Texas, treat wrongful death claims as “derivative,”
meaning that descendants would be constrained by arbitration agreements.
The Supreme Court previously ruled that West Virginia nursing home
residents' families may be forced to arbitrate their negligence claims
against the nursing homes because the state public policy that prevents
arbitration agreements from being enforced in negligence and personal
injury cases is preempted by the FAA (Marmet Health Care Center v. Brown, U.S., Nos. 11–391 and 11–394, Feb. 21, 2012).
The U.S. Supreme Court refused to hear both cases without comment (Beverly Enterprises v. Ping, U.S., No. 12-652, April 22, 2013 and SSC Odin Operating Co., U.S., No. 12-1012, April 22, 2013).