West Virginia Record

Tuesday, April 7, 2020

Justices to hear trio of nursing home cases

By Steve Korris | Jan 14, 2011

CHARLESTON – Fifty-five percent of costs from liability claims against nursing homes flow to lawyers, a friend of the Supreme Court of Appeals argues in three pivotal cases the Justices will hear on Wednesday, Jan. 18.

American Health Care Association, advocating arbitration over lawsuits, attributed the statistic to a study by Aon Global Risk Consulting in 2008.

"This means that less than half of the dollars spent on liability is actually going to patients and their families," wrote Christopher Puri of Nashville, Tennessee.

"Ultimately, the cost of nursing home litigation and increasing insurance expense for liability costs is borne by state and federal taxpayers," he wrote.

Medicare and Medicaid pay for about 70 percent of nursing home care in West Virginia, he wrote.

Another friend of the court, West Virginia Association for Justice, opposes arbitration clauses in admission contracts due to "profoundly different bargaining power."

Christopher Regan of Wheeling wrote, "When one party literally holds the key to necessary medical care, the disparity in bargaining power rises, practically speaking, to the level of duress."

He wrote that arbitration agreements required potential patients to check their fundamental rights at the door or stay out on the street.

A third friend, West Virginia Health Care Association, pleads that nothing in state nursing home law prohibits alternative procedures for resolving disputes.

Ancil Ramey of Charleston wrote that an arbitrator would hear and decide claims under state law in the same manner as a civil judge and jury.

Harrison County Circuit Judge James Matish dismissed one of the cases last year but certified the question of contract enforcement to the Justices.

For oral argument, the Justices combined his case with appeals of arbitration orders from Kanawha County circuit judges Tod Kaufman and James Stucky.

Kaufman dismissed a wrongful death suit Clayton Brown filed as brother of the late Clarence Brown, or Gordy, against Marmet Health Care Center.

On appeal, James McHugh of Hattiesburg, Mississippi, claimed arbitration placed unreasonable burdens on residents while providing incalculable benefits to defendants.

"Defendants had a fiduciary and confidential relationship with Mr. Brown and his family," McHugh wrote.

"This relationship created an affirmative duty on defendants to place Clarence Brown's interests above their own and not entice his family to waive his constitutional rights in order to receive medical care," he wrote.

For Marmet, Shawn George of Charleston responded that Clarence Brown was born with severe cerebral palsy.

"At the time of his admission, his mother was also a resident there," George wrote.

"Marmet made a place for him so he could be with her," he wrote.

He wrote that Marmet added an arbitration clause because it lost liability coverage in a "malpractice maelstrom," though it never had a negligence suit in 18 years.

He wrote that Clayton Brown signed the agreement and didn't object to arbitration.

He wrote that Gordy Brown left Marmet in 2007 with his brother and died in Tennessee from complications related to cerebral palsy.

He wrote that the family sent Marmet a card of thanks for the wonderful care they gave

He called Clayton Brown an educated, sophisticated man who visited the facility and was involved in the treatment plan.

"This is not David versus Goliath, or anything approaching it," he wrote.

"Appellant asks the court to protect appellant from himself," he wrote.

Stucky dismissed a wrongful death suit Jeffrey Taylor filed against Marmet for the estate of his late father, Leo Taylor.

Jeffrey Taylor sued Marmet after the death of his mother, Ellen Taylor, who signed Leo Taylor's admission agreement.

Stucky found that Ellen had been a Marmet resident, "appreciative of the care and attention she received."

"Ellen Taylor had the right to take Mr. Taylor to any facility she chose. She chose Marmet," Stucky wrote.

On appeal, Andrew Paternostro of the Bell Law Firm in Charleston wrote that Stucky accepted assertions that were false and unsupported by the record.

"There is no evidence that the arbitration clause was ever explained to Ellen Taylor advising her that her agreement to the mandatory arbitration provision would eliminate rights provided to her husband by applicable state law, including the right to ask for and receive punitive damages or the right to a jury trial," he wrote.

He wrote that Stucky "put the facility in high regard while unfairly portraying the plaintiff as unappreciative and ungrateful."

George answered that Jeffrey Brown urged the Court to find that Mrs. Taylor didn't intend to do what she did.

George wrote that she reviewed the agreement and raised no concerns.

In Matish's case, Sharon Marchio sued Clarksburg Nursing and Rehabilitation Center for the estate of her mother, Paula Willett.

On appeal for Marchio, Frank Simmerman of Clarksburg claimed Willett died due to delay in diagnosis and treatment

Mark Robinson, of Flaherty Sensabaugh Bonasso in Charleston, answered that Marchio entered into the agreement on Willett's behalf.

He wrote that Marchio didn't ask questions but testified that she felt the nursing home representative would have answered any questions.

He wrote that the agreement allowed Marchio to rescind it within 30 days.

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