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Do you believe that pre-treatment binding arbitration agreements should be valid? Do you believe that they are against public policy? In Pennsylvania, many nursing homes, hospitals, and doctors are trying to use them and trying to enforce them.

The Legal Intelligencer is reporting today about a Philadelphia judge who has held that an alternative dispute resolution agreement signed by a medical malpractice plaintiff's mother is not enforceable.

Amaris Elliott-Engel

2012-08-17 12:00:00 AM

A Philadelphia judge has held that an alternative dispute resolution agreement signed by a medical malpractice plaintiff's mother is not enforceable.

Plaintiff Lakeysha Walton, who lives with her mother, Nancy Walton, in Trenton, N.J., is suing Kindred Hospital Philadelphia, Kindred Hospital East and Kindred Healthcare Inc. over allegations that she received negligent care at Kindred Hospital and that bedsores she had developed while admitted to Robert Wood Johnson University Hospital in New Jersey worsened once she transferred to Kindred Hospital while in a coma, according to the opinion in Walton v. Kindred Hospital Philadelphia .

Lakeysha Walton's mother signed a voluntary alternative dispute resolution agreement halfway through her daughter's stay at Kindred Hospital amid signing other forms such as consent forms and a Medicare rights form, Philadelphia Court of Common Pleas Judge Allan L. Tereshko said in his opinion.

While Kindred Hospital used that ADR form to assert that Walton had waived her right to sue in court, the ADR agreement is invalid because the plaintiff's mother did not have the power of attorney to make decisions on her daughter's behalf and the plaintiff's mother was not an agent of her daughter, Tereshko said.

There was not express authority, implied authority, apparent authority nor authority by estoppel for Walton's mother to sign the ADR agreement on her daughter's behalf, Tereshko said.

There was not express authority because there was no evidence of a writing granting Walton's mother authority to give up her daughter's right to a jury trial for any future legal claims, the judge said.

There was not implied authority because the defendants did not produce any evidence demonstrating that Walton was "aware of the ADR clause, authorized her mother to sign the agreement, or otherwise agreed to arbitrate any disputes," the judge reasoned. "Moreover, [the defendants] were aware that plaintiff was in a coma upon her admission to Kindred Hospital Philadelphia and have failed to offer any evidence of plaintiff's conduct at the time the ADR agreement was executed."

Walton was admitted to Kindred Hospital from February 12, 2010, until April 20, 2010, the judge said.

"Nancy Walton does not recall signing the ADR agreement nor does she recall anyone from Kindred Hospital Philadelphia explaining the ADR agreement to her or asking whether she had the power of attorney," Tereshko said. "Finally, Nancy Walton was under the impression that she was merely signing documents that gave Kindred Hospital Philadelphia permission to treat plaintiff and contends that if she had been advised otherwise, she would have refused to sign any documents waiving plaintiff's right to a jury trial."

Lakeysha Walton herself was never asked to sign an ADR agreement, the judge said.

Walton was first hospitalized after she underwent a gastric bypass procedure at Robert Wood Johnson because of an obstruction in her bowels and a perforation of her gastrointestinal tract, Tereshko said. Walton lost consciousness, got an infection and her kidneys failed, which led to her being intubated and becoming dependent upon a ventilator.

The court dismissed the action against Robert Wood Johnson because of jurisdictional issues, Tereshko said.

Tereshko, writing in an opinion required under Pennsylvania Rule of Appellate Procedure 1925, also opined that his order is not final and thus not ripe for appeal.

Tereshko also said he had not issued an interlocutory order to allow an appeal because the case does not involve a "'controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter,'" according to the opinion.

Defense counsel for Kindred Hospital never filed a petition for permission to file an interlocutory appeal, Tereshko said.

While the issue of the ADR agreement is collateral to the plaintiff's main cause of action, Tereshko said, among other reasons, the case does not qualify as a collateral appeal because it does not involve "'rights deeply rooted in public policy going beyond the particular litigation at hand'" or rights that "'would potentially go unprotected without immediate appellate review.'"

Although the defendants said arbitration is preferred to resolve disputes in Pennsylvania, Tereshko said that while "arbitration may promote efficiency at the trial level, the increased costs associated with appellate litigation may negate the benefits associated with arbitration."

Plaintiffs counsel Christopher J. Culleton of Swartz Culleton in Newtown, Bucks County, and defense counsel William J. Mundy and John M. Skrocki of Burns White in West Conshohocken, Montgomery County, did not immediately respond to requests for comment.

Amaris Elliott-Engel can be contacted at 215-557-2354 or Follow her on Twitter @AmarisTLI.

(Copies of the 13-page opinion in Walton v. Kindred Hospital Philadelphia, PICS No. 12-1509, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)

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