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Is Enforcing Arbitration Agreements in Nursing Home Negligence/ Wrongful Death Claims the New Trend in Ohio?

By Jason A. Paskan, Esq.

In light of the Supreme Court of the United States' holding in Marmet Health Care Ctr., Inc. v. Brown, 132 S. Ct. 1201 (2012), arbitration provisions may apply to, and be binding upon, all related claims to a nursing home resident's stay - including, but not limited to claims of medical/nursing negligence, wrongful death and punitive damages. Accordingly, Ohio's wholesale prohibition against pre-dispute agreements to arbitrate wrongful death claims is an invalid categorical rule. See Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134, 2007-Ohio-4787, 873 N.E.2d 1258 (wife's wrongful death claim against the company was not subject to arbitration because, "[a] decedent cannot bind his or her beneficiaries to arbitrate their wrongful-death claims.").

One recent case that has addressed this issue is Vogt v. Indianspring of Oakley, 1st Dist. No. C-110864, 2012-Ohio-4124. In Vogt, the First District remanded the matter to the trial court with instructions to stay the case to enforce the arbitration agreement. The plaintiff alleged a wrongful death claim and a nursing home negligence cause of action on behalf of the former resident. Notably, the arbitration agreement in Vogt was executed by the resident's personal representative, a beneficiary of the wrongful death claim. The First District held:

Due to the presumption in favor of arbitrability, [the plaintiff] had the burden to demonstrate unconscionability. Having reviewed the record, we conclude that she did not. During the hearing before the trial court, [the plaintiff] presented no evidence that the terms of the agreement were not commercially reasonable or that any circumstances in the bargaining made the process unconscionable. And our review of the agreement does not expose any indications of either substantive or procedural unconscionability. Rather than focus on the question of substantive and procedural unconscionability, [the plaintiff] instead challenged the validity of the arbitration agreement based on the fact that [the plaintiff], not [the resident], had signed the agreement. In signing the agreement (and initialing various clauses of the agreement), [the plaintiff] held herself out as the legal representative of [the resident]. [The plain-tiff] points to a statement in the agreement that states: "If Resident is unable to sign this Agreement, then a legal representative of the resident may sign on his/her behalf. The person signing below certifies that he/she has the legal authority to enter into this Agreement on Resident's behalf with the Facility either through a valid Power of Attorney or a guardianship appointment." [The plaintiff] contends that this language put the burden on [the nursing home] to demonstrate that [the resident] was unable to sign the agreement. But [the plain-tiff's] contention ignores the presumption in favor of arbitrability. As the burden was on [the plaintiff] to show that the agreement was un-enforceable, she had to demonstrate that she had not validly exercised her authority as [the resident's] legal representative when she signed the agreement. She did not make such a demonstration.

Because we conclude that [the plaintiff] did not demonstrate any grounds for revoking the arbitration agreement, we conclude that the trial court erred when it refused to grant [the nursing home's] motion for a stay of proceedings for a referral to arbitration. ***

Vogt , at ¶6-8.

On its face, the First District's ruling in Vogt is in line with the Supreme Court of the United States' holding in Marmet, and enforces Ohio's presumption of arbitrability. Interestingly, the decision in Vogt permits a beneficiary to bind other similarly situated beneficiaries to arbitrate wrongful death claims, contrary to the general presumption set forth in Peters, supra. Whether this is a new trend in Ohio law that is intended to mirror the holding in Marmet remains to be seen. Notwithstanding, Ohio nursing homes should be encouraged that the bargained-for arbitration agreements that they enter into with their residents and families now have state law precedent to rely upon when seeking to en-force arbitration. See also Templeman v. Kindred Healthcare, Inc., 8th Dist. No. 99618, 2013-Ohio-3738, (Eighth District compared the case before it to Vogt and did not disturb the First District's holding).

If you are interested in learning more about arbitration agreements, contact Bonezzi Switzer Polito & Hupp Co. LPA.