Here’s what happened in Monschke v Timber Ridge Assisted Living, Inc. (2016) 244 CA4th 583. In 2005, Decedent began suffering from dementia. In 2012, Child enrolled Decedent in Facility because it had a memory care unit. Child executed a residency agreement as agent for Decedent under a power of attorney. The residency agreement contained an arbitration clause.
In 2014, Child filed a complaint for elder abuse and wrongful death against Facility. The complaint alleges that Decedent was allowed to exit an exterior door of Facility without supervision, where she lingered outside unattended, fell, and died of her injuries.
Facility petitioned the trial court to compel binding arbitration based on the provision Child had signed. The trial court denied the petition, stating there was the possibility of conflicting rulings if the action were split between elder abuse claims—which can be forced into arbitration (see Hogan v Country Villa Health Servs. (2007) 148 CA4th 295)— and wrongful death claims, which cannot (see Fitzhugh v Granada Healthcare & Rehabilitation Ctr. (2007) 150 CA4th 469).
The court of appeal affirmed. In this case, the wrongful death action was brought under CCP §377.60, which authorized Child to bring the surviving children’s claims “on their behalf” in her capacity as Decedent’s personal representative.
Unlike some jurisdictions in which wrongful death actions are derivative, CCP §377.60 creates a new cause of action in favor of the heirs as beneficiaries. Regardless of who files suit, recovery in a wrongful death action belongs to the heirs, not to the decedent or the estate.
The California Supreme Court has held that a patient seeking medical care can bind other persons to arbitrate their claims for the patient’s wrongful death. Ruiz v Podolsky (2010) 50 C4th 838. But that decision was distinguished by the court in Daniels v Sunrise Senior Living, Inc. (2013) 212 CA4th 674, which held that the daughter of a nursing home resident couldn’t be compelled to arbitrate her wrongful death claim under a residency agreement she signed in her capacity as the decedent’s agent. The court emphasizes that Ruiz was “based squarely” on CCP §1295, which governs agreements to arbitrate medical malpractice claims in medical service contracts with health care providers.
This may mean that the result in Monschke would be different in a wrongful death action based on medical malpractice rather than simple negligence. Such an action might more often arise against a skilled nursing facility or intermediate care facility based on the actions of medical staff, rather than a residential care facility for the elderly as in the present case.
Elder abuse remedies also don’t apply to acts of professional negligence under CC §3333.2. However, a health care provider that engages in “reckless neglect” of an elder isn’t protected by these limitations on recovery. See Fenimore v Regents of Univ. of Cal. (Mar. 9, 2016, B262186) 2016 Cal App Lexis 231.
For a detailed discussion of arbitration in nursing home litigation, turn to CEB’s California Elder Law Litigation: An Advocates Guide §§2.21, 3.63–3.64. Also check out CEB’s California Trust and Probate Litigation §§15.28–15.30 on wrongful death claims. For timely and insightful analysis of new cases like this, subscribe to CEB’s Estate Planning & California Probate Reporter.
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