West Virginia Supreme Court Finds That State Health Surrogate Law Does Not Apply to Nursing Home Arbitration Clauses

wheelzchair.jpegLast June, the West Virginia Supreme Court affirmed that a contract arbitration clause could be nullified due to the doctrine of unconscionability, where one party to the contract has far greater power than the other. Arbitration clauses are becoming increasingly common in contracts, especially consumer and employment contracts. The clauses require that both parties waive the right to file a lawsuit in court and instead take their dispute before an arbitrator, who is usually not a judge or an attorney. There has been criticism that arbitration favors the more powerful party, which typically gives repeat business to certain arbitration firms, giving the firms incentive to side with that party. Other criticisms have been that arbitrators often don’t know the law, and that it can be very difficult to appeal an arbitration award.

Recently, the West Virginia Supreme Court again found a nursing home arbitration clause unenforceable. In this case, the contract was signed by a woman whose mother had Alzheimer’s. Because Nancy Belcher’s mother was no longer capable of making her own medical decisions, under section 16-30-8 of the West Virginia Code, the mother’s physician selected Belcher to serve as her mother’s health care surrogate. Over the following 10 months, Belcher’s mother allegedly suffered from infections, dehydration, malnutrition, and other ills during her time at the nursing home. At the end of July 2010, she died.

Belcher filed a wrongful death lawsuit against the nursing home in 2011. The nursing home filed a motion to dismiss due to the existence of the arbitration agreement. However, the circuit court judge in the case sided with Belcher and found the arbitration agreement unenforceable. Judge Charles King of Kanawha County noted that Belcher was only authorized to make health care decisions, which the arbitration clause utterly failed to address. Judge King thought that West Virginia law was not meant to permit a surrogate to waive the constitutional right to a jury trial.

The nursing home then filed a petition for a writ of prohibition with the West Virginia Supreme Court in order to block the circuit court’s ruling. Justice Robin Jean Davis wrote the opinion, which considered whether the health surrogate role envisioned by the state legislature extended to this type of situation. The opinion determined that arbitrating disputes concerning a nursing home’s care was not within the scope of a health surrogate’s authority. The West Virginia Supreme Court therefore affirmed the circuit court’s decision to render the arbitration agreement unenforceable.

The outcome of this case is terrific news for anyone faced with the heavy responsibility of determining a loved one’s care, including placing that loved one in a nursing facility. It says that the West Virginia Supreme Court is not giving in to the United States Supreme Court’s pressure to view everything through the lens of the Federal Arbitration Act, which claims to preempt most state laws that disfavor arbitration agreements. So if you lost a loved one due to possible nursing home negligence, don’t be afraid to hire a West Virginia wrongful death attorney and file a lawsuit.