EMAIL TO A FRIEND COMMENT

 

Nursing Home’s Optional Arbitration Agreement Not Health Care Decision for Health Care Surrogate Under West Virginia Health Care Decisions Act


A woman suffering from Alzheimer’s disease and dementia had a designated health care surrogate pursuant to West Virginia’s Health Care Decisions Act. Among the paperwork to be signed upon the woman’s admission to a nursing home was an arbitration agreement. The health care surrogate signed the arbitration agreement. The woman died. Her survivors filed a wrongful death claim against the nursing home.

 

The nursing home filed a motion to enforce the arbitration agreement. The circuit court denied the motion concluding that the health care surrogate’s authority was limited to making health care decisions on behalf of the decedent and did not extend to the subject arbitration agreement. The nursing home filed a petition for a writ of prohibition to prevent the circuit court from enforcing its order denying the nursing home’s motion to dismiss and refusing to enforce the arbitration agreement signed by the designated health care surrogate of the respondents’ decedent.

 

The Supreme Court of Appeals of West Virginia denied the petition for a writ of prohibition. The court held that the health care surrogate’s authority permitted her to make only health care decisions for the decedent. The health care surrogate did not have the authority to enter the subject arbitration agreement because it was not a health care decision and was not required for the decedent's receipt of nursing home services.

 

The court reasoned that the West Virginia Health Care Decisions Act authorizes a health care surrogate to make health care decisions on behalf of the incapacitated person for whom the surrogate has been appointed. As outlined by the Act, the health care decisions that a health care surrogate is authorized to make on behalf of the incapacitated person for whom the surrogate has been appointed are decisions to give, withhold, or withdraw informed consent to any type of health care, including, but not limited to, medical and surgical treatments, including life-prolonging interventions, psychiatric treatment, nursing care, hospitalization, treatment in a nursing home or other facility, home health care, and organ or tissue donation. An agreement to submit future disputes to arbitration, which is optional and not required for the receipt of nursing home services, is not a health care decision under the Act.

 

See: State ex rel. AMFM, LLC v. King, 2013 WL 310086 (W.Va., January 24, 2013) (not designated for publication).

 

 

REPRINTS & PERMISSIONS COMMENT