Second District Nursing Home Opinion Upholds Arbitration After Severing Portions
Florida Arbitration Law . com:
After a brief respite, we return to our regularly scheduled posting beginning with the interesting case of Gayle Shotts v. Tandem Health Care of Winter Haven, OP Winter Haven, Inc.; Tandem Regional Management of Florida, Inc.; et al.
Nursing home cases get our attention the most because of the frequency that they take the dispute over arbitration to the extreme. Issues arise questioning whether the elderly or infirm can contract. Questions of whether arbitration is a health care decision for proxies or surrogates or whether a power of attorney is authorized to sign also arise. And, of course, nursing home litigation created the public policy exception argument.
In this instance, a power of attorney signed the admission documents and arbitration agreement. Making no objection at the time of admission or thereafter, the hard feelings about arbitration arose once suit was filed and, then, it was claimed that the arbitration provision was both unconscionable and against public policy.
Unconscionability was dealt with swiftly by the court since both procedural and substantive forms are required but there was no procedural defects in this case. To wit, the court wrote that the events surrounding the signing of the arbitration agreements were essentially fair: the arbitration agreement was a separate document than the admission agreement, the signor was not rushed and she was not prevented from asking questions (despite pleas that she did not understand what she voluntarily signed). The court made a special note to claim that this was factually dissimilar to the recent Woebse v. Health Care & Retirement Corp. of America case.
The arbitration agreement referred the matter to the American Health Lawyers Association (AHLA, formerly the NHLA) which requires a heightened standard of proof and a prohibition on awarding punitive damages. The court noted that…