Authority To Make Medical Decisions Is Not The Same As Authority To Consent To Arbitration. In Lombardo v. Gramercy Court, C098857 ( 3rd Dist. 12/31/24) (Robie, Earl, Mauro) the plaintiffs, Lisa Lombardo and others, sued Gramercy Court for wrongful death, negligence, elder abuse, and gross negligence after Elizabeth Stein, their relative, died following inadequate […]
On The Difference Between A Final Award And An Interim Award Dismissing Claims But Leaving The Door Open For Additional Claims. In Ortiz v. Elmcrest Care Center, LLC, B330377 (2/3 pub. 11/7/24) (Egerton, Adams, Bershon), Ericka Ortiz, representing the Estate of Jose de Jesus Ortiz, sued Elmcrest Care Center and its staff, alleging elder […]
An LPS Conservatorship Only Created Authority To Make Decisions Concerning Health Care And Treatment, Not Authority To Agree To Arbitration. Health care facilities are a fertile breeding ground for problems enforcing arbitration agreements. The problems usually stem from deciding who has authority to agree to arbitration, who has capacity, and whether the claims to […]
Health Care Cases Continue To Generate Problematic Arbitration Agreements. The case James Maxwell v. Atria, A168043 (1/1 9/19/24) (Siggins, J.) involves the death of 93-year-old Trudy Maxwell, a resident at Atria Park of San Mateo, who passed away after drinking industrial-strength cleaner mistakenly served by an Atria employee. Trudy's children, including James Maxwell III, […]
An Effective Clickwrap Agreement Provides Notice Of Arbitration, Which, However, Can Be Undone. Plaintiffs, who purchased the Dexcom G6 Continuous Glucose Monitoring System to manage their diabetes, and sued the manufacturer alleging the the Dexcom G6 was defective and caused injuries. Dexcom moved to compel arbitration, based on a clickwrap agreement referring to arbitration. […]
The Outcome Relied On Ruiz v. Podolsky, 50 Cal.4th 838 (2020) (Ruiz). Parents sued Asistencia, a skilled nursing facility, alleging survivor claims for dependent adult abuse and negligence on behalf of their son Skyler as well as their own claim for wrongful death. An arbitration agreement existed between Skyler and Asistencia, so Astincencia moved […]
Necessary Disclosures Were Found In The Group Subscriber Agreement And Enrollment Form. Dougherty v. U.S. Behavioral Health Plan, 101 Cal. App. 5th 682 (4/2 4/24/24) (Codrington, Miller, Fields) involves the application of Health & Safety Code § 1363.1 to determine whether a dispute had to be arbitrated with a health care provider. While reading […]
California Health Care Decisions Law Allows For Appointment Of A Health Care Agent. The problem in Harrod v. Country Oaks Partners, LLC, S276545 (CA S.Ct. 3/28/24) (Jenkins, J.) is that the health care agent who signed an agreement with a skilled nursing home facility containing an arbitration clause was acting outside the scope of […]
Health Care Facilities Continue To Generate Disputes About Enforceability Of Arbitration Provisions. Sometimes you can predict the conclusion in a court opinion after reading the recitation of facts. Here, the evidence pointed to a 74 year old women, suffering from dementia, who entered a residential care facility between December 29, 2022, and January 1, […]
Health And Safety Code Section 1363.1 Is The Relevant Provision. Section 1361.1 provides that "[a]ny health care service plan that includes terms that require binding arbitration to settle disputes and that restrict, or provide for a waiver of, the right to a jury trial shall include, in clear and understandable language, a disclosure that […]