Court says nursing home malpractice claims must be arbitrated

December 14, 2016 – Media Mention
Law 360

An Arkansas appeals court reversed a lower court's decision this month, deciding that the daughter of a nursing home patient must arbitrate her medical malpractice claims against the facility. The decision was based on the state's supreme court ruling in a similar case.

In 2009, Julius Marks, the father of appellee Ericka Ann Davis, became a resident of Courtyard's nursing-home facility in Arkadelphia, Arkansas. Mr. Marks's admission papers, including an arbitration agreement, were signed on his behalf by Ms. Davis, pursuant to her power of attorney. 

The arbitration agreement provided, in essence, that any claims related to Courtyard's provision of services or health care would be resolved exclusively by binding arbitration. The agreement also provided that arbitration would be conducted in accordance with the National Arbitration Forum (NAF) Code of Procedure, which was incorporated into the agreement.

After Mr. Marks passed away, his daughter filed a lawsuit against the facility for negligence and medical malpractice. The defendant insisted the case should go to binding arbitration, but the plaintiff argued that arbitration was not legally possible because NAF no longer conducts consumer arbitrations. The lower court agreed, and the defendant appealed. 

The appeals court, pointing to a similar case decided by the Arkansas Supreme Court, said the "the absence of the NAF did not render performance of the arbitration agreement impossible. Specifically, the court determined that the agreement's reference to the NAF was ancillary to, rather than integral to, the parties' agreement to arbitrate."

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