Does an Arbitration Clause in a Nursing Home Agreement Preclude Tort Actions Relating to the Resident’s Wrongful Death?

By Alex Stein

Arbitration clauses in nursing home agreements are pretty much standard. Whether such a clause precludes tort actions complaining about the resident’s wrongful death is consequently an important issue.  The Pennsylvania Supreme Court has recently addressed this issue in Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016). In that case, the resident’s family members sued the nursing home in their individual capacity as derivative victims of the alleged tort (the wrongful death action) and as representatives of the resident’s estate (the survival action). In the wrongful death action, the plaintiffs sought compensation for the emotional harm they sustained from losing their loved one prematurely and possibly for their economic losses as the resident’s dependents (the Court’s decision provides no details on that). The survival suit, on the other hand, focused on the resident’s entitlement to be compensated for pain and suffering and other harms she sustained from the alleged negligence. This entitlement belonged to the resident’s estate rather than her successors as individuals.

The agreement between the resident and the nursing home contained a standard compulsory arbitration provision that covered any resident’s suit against the nursing home. This provision consequently extended to the survival action, but not to the wrongful death suit filed by the nonparties to the agreement. However, under Pennsylvania Rule of Civil Procedure 213(e), wrongful death and survival actions cannot be bifurcated and must be tried together. Based on that rule, the trial court decided that the two actions must be consolidated, and because one of the actions fell outside the scope of the arbitration provision, both actions should go to trial.

The Pennsylvania Supreme Court overturned this decision for failure to account for the Federal Arbitration Act (FAA), as interpreted (inter alia) in Southland Corp. v. Keating, 465 U.S. 1, 3 (1984); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20 (1983); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985); AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 346 (2011); and KPMG LLP v. Cocchi, 132 S.Ct. 23, 26 (2011).  Continue reading

Mental Health First Aid Training in Prisons, Police Departments, and the Presidential Election

By Wendy S. Salkin

It has been widely reported and acknowledged that many incarcerated Americans live with mental illness. In 2014, the Treatment Advocacy Center and the National Sheriffs’ Association published The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey, a joint report that included the following findings:

  • In 2012, there were estimated to be 356,268 inmates with severe mental illness in prisons and jails. There were also approximately 35,000 patients with severe mental illness in state psychiatric hospitals. Thus, the number of mentally ill persons in prisons and jails was 10 times the number remaining in state hospitals.
  • In 44 of the 50 states and the District of Columbia, a prison or jail in that state holds more individuals with serious mental illness than the largest remaining state psychiatric hospital. For example, in Ohio, 10 state prisons and two county jails each hold more mentally ill inmates than does the largest remaining state hospital.

Similarly widely reported and acknowledged is that prisons often either cannot or simply do not serve the mental health treatment needs of those housed within their walls. As Ana Swanson of The Washington Post observed:

Unsurprisingly, many prisons are poorly equipped to properly deal with mental illness. Inmates with mental illnesses are more likely than other to be held in solitary confinement, and many are raped, commit suicide, or hurt themselves.

Solitary confinement is often used as a means of separating inmates living with mental illness from the rest of a prison population. As Jeffrey L. Metzner and Jamie Fellner reported in their March 2010 article, “Solitary Confinement and Mental Illness in U.S. Prisons: A Challenge for Medical Ethics”: Continue reading

The Constitutionality of Damage Caps in Pennsylvania

By Alex Stein

In its recent decision, Zauflik v. Pennsbury School Dist., — A.3d —- (Pa. 2014), the Supreme Court of Pennsylvania upheld the constitutionality of the statutory $500,000 cap on tort compensation payable by the local government. This decision was delivered in a case involving a student who lost her leg in an accident in which a school bus accelerated out of control onto a sidewalk and struck her (along with other nineteen students). The jury awarded the student $14,036,263.39 ($338,580 for past medical expenses, $2,597,682 for future medical expenses, and $11.1 million for past and future pain and suffering), but the court reduced the award to $500,000.

In affirming that ruling, the Pennsylvania Supreme Court rejected a number of constitutional challenges against the statutory cap. Continue reading