Signing on the Dotted Line - Who Can Waive a Nursing Home Patient s Right to A Jury Trial?

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1 THE WRIT By: Pamela Everett of Porter Simon April 30, This is another in a series of articles on California law - for Nevada lawyers - authored by members of the law firm of Porter Simon (Truckee, South Lake Tahoe, and Reno). Signing on the Dotted Line - Who Can Waive a Nursing Home Patient s Right to A Jury Trial? The decision to admit a family member to a nursing facility is never easy and very often the admission process takes place in emergency circumstances or when clients and their loved ones are under significant stress not the ideal situation for thinking clearly about signing important documents or for consulting the family attorney. Most admission packages include arbitration agreements for medical malpractice and other claims, so the admission process will typically involve waiving the patient s right to a jury trial. But other than a patient with full mental capacity, who can validly enter into such arbitration agreements and under what authority? The California appellate court has recently spoken on this interesting aspect of nursing home admission agreements in two cases involving similar but distinct facts. Hogan v. Country Villa Health Care Decisions Under a Health Care Directive In the first case, Sarah Hogan executed a valid California advanced health care directive (health care power of attorney) appointing her daughter Barbara as her agent. Barbara later admitted Sarah to a skilled nursing facility and Barbara signed two

2 arbitration agreements during the admission process. One agreement applied to nonmedical malpractice claims against the facility, specifically covering claims under California s elder abuse laws. Sarah later died in the facility and her three children, including Barbara, sued for, among other things, elder abuse. Hogan v. Country Villa Health Services, 148 Cal.App.4 th 259 (2007). The nursing home sought to compel arbitration on the elder abuse claim but the trial court denied the motion, finding that the health care power of attorney did not authorize Barbara to enter into the arbitration agreements. The nursing home appealed. Id. at 263. The appellate court began its analysis by examining the scope of a health care power of attorney under the California Probate Code and noted that unless the principal expressly limits the agent s authority, the agent is authorized to make all health care decisions, including selection and discharge of health care providers and institutions. Id. The court also noted that where the Probate Code does not articulate rules governing an agent s powers under such a power of attorney, the laws of agency apply. Id. at 264. The court concluded that under both the Probate Code, the Civil Code provisions on agency law, and in particular, the decision in Garrison v. Superior Court, 132 Cal.App.4 th 253 (2005), an agent under a health care power of attorney, in selecting a care facility, has the power to execute admissions forms, including arbitration agreements, unless the principal expressly limits that power. The court found that whether to admit an aging parent to a particular care facility is a health care decision and that arbitration agreements are executed as part of that decision-making process. Id. at

3 Flores v. Evergreen at San Diego Spousal Authority In the second case, husband Luis Flores admitted his wife, Josephina, to the Evergreen skilled nursing facility in San Diego. Josephina was suffering from dementia so Luis signed various admission documents for her, including two arbitration agreements like the ones in the Hogan case. Flores v. Evergreen at San Diego, 148 Cal.App.4 th 581 (2007). The arbitration agreements signature lines were labeled [l]egal Rep/Responsible Party/Agent. When Luis signed these agreements he did not have a power of attorney to act for Josephina, nor had he been appointed as her conservator or guardian. Id. at 585. Luis and Josephina later filed suit against Evergreen alleging negligence and several other causes of action. The Floreses alleged that Evergreen s staff allowed Josephina to fall and fracture her leg and then failed to provide any treatment for almost a day. Not surprisingly, Evergreen sought to compel arbitration under the two agreements Luis signed when he admitted Josephina to the facility. Id. at But the Floreses argued that Luis did not have any legal authority to waive his wife s right to a jury trial. The Floreses argued further that Luis authority for his wife extended only to making medical decisions and that the waiver of a jury trial is not a medical decision. Evergreen countered that Luis represented himself as Josephina s agent and that Josephina allowed Evergreen to believe that Luis had the authority to act on her behalf. Evergreen also argued that the spousal relationship allowed Luis to act as Josephina s agent even absent express legal authority under a power of attorney or otherwise. Id. at 586.

4 The trial court denied Evergreen s petition to compel arbitration, reasoning that there was no evidence that Josephina did anything to cause Evergreen to believe that Luis was her agent and the fact that Luis signed the admission papers on her behalf was irrelevant. The trial court also rejected Evergreen s claim that Luis spousal status somehow conferred agency authority. Evergreen appealed. Id. Evergreen s primary argument on appeal was that Luis spousal relationship with Josephina created agency status. Evergreen based its argument on the fiduciary and support duties owed between spouses under California s Family Code. The court agreed that California law triggers certain fiduciary and support obligations for spouses, but it found that such duties and obligations do not create a power to contractually bind each other in an agency context. Id. at 588. The court also reviewed in detail the statutory scheme governing California nursing homes and found that while the Legislature has specifically conveyed to family members the authority over medical decision making and enforcement of patient rights, it has not conveyed such authority over the arbitration decision. Id. at 589. The court found that unlike admissions and medical care decisions decisions for which the Legislature has granted authority to a patient s family members - the decision about arbitration is not necessary to preserve a person s well-being and pertains only to legal rights. Accordingly, the Legislature has imposed heightened restrictions on such provisions and the scope of persons authorized to make decisions about waiving the jury trial right. Id. at

5 Summary The Hogan court found the existence of the health care power of attorney to be dispositive in allowing an agent the authority to waive a patient s right to a jury trial. By following the ruling in Garrison, the court further confirmed the wisdom of that decision and the full scope of health care decisions under a California health care directive/power of attorney. The Flores case also confirms existing California law on arbitration agreements in the health care setting and provides us with important information about the scope of a spouse s authority absent a health care power of attorney or other express legal authority. It s important to note that the Flores court agreed that, under general agency principles, an agency relationship may arise by oral consent or by implication from the conduct of the principal (alone or together with the agent). But the court correctly noted that conduct by the principal is essential to creating such agency and that Evergreen had provided no evidence that Josephina had caused Evergreen to believe that Luis was her agent. Id. at 588 (emphasis added). So while the Flores case limits a spouse s authority, it also informs us that the patient spouse s conduct could change this result and, under certain circumstances, allow a non-patient spouse to waive the patient s right to a jury trial. * * * Pamela Everett is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. Pamela limits her practice to estate planning, trusts and probate law. She may be reached at everett@portersimon.com or at the firm s web site