902 So.2d 296

Blankfeld v. Richmond Health Care, Inc. (Fla. Dist. Ct. App., 4th, May 25, 2005)

Ruling en banc, a Florida appeals court holds that a nursing home’s admissions requirement of arbitration administered by the National Health Lawyers Association violates public policy.

In 2001 Riva Blankfeld, who suffered from senile dementia, was readmitted to a nursing facility. The admission agreement, signed by her son, Melvin, provided that all disputes would be resolved by binding arbitration administered by the National Health Lawyers Association (NHLA). Mr. Blankfeld later sued the nursing home on his mother’s behalf and, following her death, continued the suit as personal representative of her estate. The trial court granted the nursing home’s motion to compel arbitration. Mr. Blankfeld appealed, arguing that 1) the NHLA’s method of arbitration violates public policy because it limits the remedies created by the Florida legislature in the Nursing Home Residents Act; and 2) his authority to sign the admission agreement as a statutory health care proxy did allow him to bind his mother to arbitrate claims.

The District Court of Appeal of Florida, sitting en banc, reverses. The court rules that the NHLA’s requirement of clear and convincing evidence of intentional or reckless misconduct effectively eliminates recovery for negligence, and is contrary to the Nursing Home Residents Act, which requires only a showing by preponderance of the evidence, and only that the facility breached a duty owed to the resident. The court also rejects the nursing home’s proposal to uphold arbitration without the requirement that it be administered by the NHLA, ruling that a health care proxy may make only health care decisions.

Author: FLA. Dist. Ct. App. from Florida

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