The Superior Court of the State of Delaware (“Delaware Court” ) issued an Order dated August 15, 2017 in which it denied the defendant nursing home’s request that the plaintiff’s Delaware nursing home negligence lawsuit be sent to arbitration, holding that when viewing the evidence and drawing all reasonable inferences in a light most favorable to the plaintiffs, the non-moving parties, the nursing home arbitration agreement signed by the resident’s daughter cannot be enforced with respect to injuries that allegedly occurred in April 2015.
The nursing home resident had left total hip replacement surgery on April 8, 2015. On April 11, 2015, the resident was transferred to the defendant nursing home. On April 14, 2015, the resident’s daughter signed a voluntary arbitration agreement that provides that an arbitration panel, not a court, would resolve all disputes arising out of the resident’s treatment at the defendant nursing home.
Despite the resident being fully capable of signing legal documents and verbally communicating, she never signed the nursing home arbitration agreement. The resident’s daughter (the plaintiff in the nursing home negligence lawsuit) did not have legal power of attorney over her mother at the time she signed the nursing home arbitration agreement.
On April 19, 2015, the resident complained of increased hip pain in her left hip when she was transferred to her bed by the nursing home staff. The next day, she complained that the pain was worsening. The Delaware nursing home negligence lawsuit alleges that none of the defendant nursing home’s staff notified the resident’s orthopedic surgeon of her pain complaints.
On April 21, 2015, the resident’s orthopedic surgeon noted drainage from the incision in the resident’s left hip. Thereafter, the drainage from her left hip continued and she was admitted to a hospital with an infected incision at her left hip. She had surgery to incise and drain the infection. During the surgery, the surgeon discovered a fracture of the femur around the previously placed prosthesis that required the removal of the prosthesis and placement of an antibiotic spacer to treat the infection.
On March 15, 2016, eleven months after the resident was admitted to the defendant nursing home, the resident executed a Durable General Power of Attorney designating her daughter (the plaintiff).
On April 13, 2017, the daughter filed a nursing home negligence lawsuit against the nursing home, pursuant to the powers granted to her by the Durable General Power of Attorney, alleging negligence, gross negligence, recklessness, and/or willful and wanton behavior that caused severe injuries to the resident.
On June 9, 2017, the defendant nursing home filed a motion to dismiss or, in the alternative, requested a stay in favor of arbitration, alleging that the plaintiff agreed to arbitrate any dispute with the defendant nursing home. The defendant argued that the plaintiff acted with actual or apparent authority by signing the nursing home arbitration agreement, relying upon the Durable General Power of Attorney that was executed eleven months after the plaintiff signed the nursing home arbitration agreement.
The Delaware Court stated in its Order that the defendant nursing home has not established that the plaintiff had actual authority to sign the nursing home arbitration agreement; the defendant has not established that the plaintiff had apparent authority to sign the nursing home arbitration agreement or that the defendant reasonably relied upon the plaintiff’s apparent authority; and, the plaintiff did not have a valid power of attorney on April 14, 2015 and therefore could not have waived the resident’s right to trial since the power of attorney becomes effective only upon the disability or incapacity of the principal (the resident).
The Delaware Court stated that since the nursing home arbitration agreement cannot be enforced against the resident, there is no valid reason to stay the nursing home negligence lawsuit.
Source Hylak v. Manor Care – Pike Creek of Wilmington, DE, LLC, C.A. No. N17C-04-148 ALR
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