Durant Healthcare, LLC v. Garrette
| Decision Date | 29 November 2022 |
| Docket Number | 2021-CA-00823-COA |
| Parties | DURANT HEALTHCARE, LLC A/K/A HOLMES COUNTY LONG TERM CARE CENTER AND C. BRUCE KELLY APPELLANTS v. DEAUNDRAY GARRETTE, INDIVIDUALLY, AND AS ADMINISTRATOR OF THE ESTATE OF ZION GARRETTE, AND ON BEHALF OF AND FOR THE USE AND BENEFIT OF THE WRONGFUL DEATH BENEFICIARIES OF ZION GARRETTE APPELLEE |
| Court | Mississippi Court of Appeals |
EN BANC.
¶1. Durant Healthcare LLC a/k/a Holmes County Long Term Care Center and C. Bruce Kelly (collectively "Durant Healthcare") appeal from the Holmes County Circuit Court's order denying Durant Healthcare's motion to compel arbitration and its motion for arbitration-related discovery in this wrongful death case. Durant Healthcare argues that the deceased, Zion Garrette, was mentally competent at the time of his admission to the nursing as his agent, and Zion was the third-party beneficiary of the admission agreement. In the alternative, Durant Healthcare contends that the circuit court erred in denying arbitration-related discovery. Considering the evidence in the record and the arguments of counsel, we affirm the circuit court's decision.
¶2. Zion was a welder most of his life but became permanently disabled and unable to work when he was in his fifties. He suffered from rhabdomyolysis, the breakdown of damaged muscle tissue (which can cause pain), weakness, vomiting, and confusion. He had also been diagnosed with bipolar disorder and had several psychiatric hospitalizations over the years. However, his family never instituted any guardianship or conservatorship proceedings.
¶3. In May of 2017, when he was sixty-eight, Zion was treated at the University of Mississippi Medical Center at Grenada. At various times during his stay, Zion exhibited mental confusion. The first medical record provided was a May 15 2017 presentation to the emergency room for Zion's increased weakness. According to Dr. Frank Brown, Zion was "unable to give a history of present illness because he is confused but able to verbalize some." However, in Dr Brown's physical exam of Zion, he noted Zion as being alert and "oriented to person, place and time" with normal behavior and thought content.
¶4. Zion was transferred from UMMC Grenada to UMMC Holmes County on May 20, 2017. On May 28, 2017, Dr. Brown found Zion to be "confused slightly," but neurologically alert with a GCS score of 15.[1] Between then and May 30, 2017, Zion's medical records noted that he had impaired mental status with decreased orientation. An undated discharge summary (made sometime after May 19, 2017) indicated his condition as "unable to complete ADL's; mental status impaired with decreased orientation."
¶5. However, on June 7, 2017, in his assessment of Zion's neurological condition, Dr. Elias Abboud found him to be alert and oriented to person, place, and time. Throughout May and June 2017, Zion was treated for several conditions, including encephalopathy (a disease or damage to the brain that affects one's mental state), and dysphagia (a swallowing disorder). He also was diagnosed with fluid build-up on the brain (hydrocephalus), bipolar disorder, and depression and treated with psychotropic medications.
¶6. On June 15, 2017, Zion, accompanied by his daughter, Carter, presented to Durant Healthcare for admission to the facility. At that time, they both signed an admission agreement that contained a provision entitled "Arbitration." Under this provision, Durant Healthcare and Zion and his family would agree to mutually choose an arbitrator who would settle any legal disputes or claims between them. According to the provision, the arbitration would be conducted using the American Arbitration Association's commercial rules, but the Association's arbitrators would not be used. The arbitration provision was not a document separately signed by Zion and Carter; rather it was only a provision included in the overall admission agreement. Zion signed the admission agreement in a nearly illegible hand, which required someone to write the words "his signature" by it. In addition to signing the admission agreement as Zion's responsible party, Carter also signed a separate acknowledgment that said that Zion was competent to sign the admission agreement.
¶7. Nurse Practitioner Amy Johnson completed her admitting physician's orders and Progress Note on June 15, 2017. In it, she confirmed Zion's medical diagnosis on admission including, among other things, hydrocephalus, and a bipolar condition. The note contained Zion's medical history, a review of systems, vital signs, a physical exam, her diagnosis, and an assessment. Under her review of Zion's neurological system, Johnson wrote "no loss of consciousness, transient ischemic symptoms, or seizures." But unlike prior neurological exams by other doctors, Johnson did not indicate whether Zion was oriented to person, place, and time. Under her physical exam, Johnson relates "cranial nerves: Cns II-XII are grossly intact." There is nothing else in her assessment relating to Zion's cognitive abilities.
¶8. However, on an "MDS Nurses Summary" of Zion's condition covering June 15, 2017, to June 21, 2017, Nurse Palmertree indicated that Zion was disoriented as to place and time; that he had a short-term memory problem; that he could not name the current season, the location of his room, any staff names or faces, or that he was even in a nursing home. The nurse concluded in her "BIMS" assessment (Brief Interview for Mental Status) that Zion was a "6" on a scale of 1-15, putting him in the severe cognitive impact category.[2] On the same day of his admission, June 15, 2017, the nursing home's social services director and director of nursing noted that there were no plans for Zion's discharge; that he needed nursing home care because of "wandering behavior warranting 24N supervision," and that Zion's stay was indefinite.
¶9. Although a nutrition record signed by the nursing home's dietary manager and dated June 21, 2017, noted Zion's mental status as alert, on June 26, 2017, Dr. Todd Fulcher noted that "the pt's congnition [sic] and processing are limiting him."[3] At that time, Dr. Fulcher noted Zion was only oriented to person and purpose. The occupational therapist assessment noted that when Zion began therapy, "he was largely nonresponsive verbally."
¶10. Durant Healthcare's Resident Care Plan for Zion indicated that on June 26, 2017, Zion required assistance for, among other things, cognitive deficits. On a similar undated document, it was indicated that staff was setting goals for Zion's "severe" cognitive deficits noted.
¶11. On July 15, 2017, a month after admission, Zion began speech therapy. At that time, the therapist assessed his ability to understand "yes/no" questions and follow one-step commands at less than 25%. The speech therapist set as a goal that the "patient will demonstrate adequate comprehension to improve ability to respond to yes/no and open/ended questions, follow directions, and participate in meaningful conversations." On that same date, Dr. Fulcher noted that a barrier to Zion's functioning was his "altered mental status."
¶12. Dr. Fulcher did not complete a Pre-Admission Screening (PAS) Application for Zion's qualification for Medicaid until July 19, 2019, a month after his admission. At that time, Dr. Fulcher found Zion to be totally dependent and needing assistance for all ten of his daily activities.[4] He found Zion to be incontinent two or more times a week, and that Zion gave incorrect answers to person, place, and time questions four out of eleven times. Dr. Fulcher said Zion did not have dementia but that he had a diagnosis of a major mental illness and a history of taking psychotropic medications. He determined that Zion's judgment impairment level was "mild to moderate." He confirmed the primary medical diagnosis of encephalopathy and dysphagia.
¶13. On that same assessment form, Social Worker Lana Richardson screened Zion, and circled "yes" to a category that "[p]erson has a history of, or presents any evidence of cognitive or behavior functions that indicate the need for an MR evaluation." Interestingly, this Medicaid form was not signed by Zion, but by Carter in a section reading "I hereby acknowledge my participation in this screening process, agree that I have had long term care program options explained to me and have indicated my choice by initialing the appropriate box above." Moreover, Carter signed this form on June 15, 2017, which given the dates of the professional staff entries, had to have been blank at that time.
¶14. Nurse Palmertree again evaluated Zion on July 21, 2017, and noted that he still had an "altered level of consciousness." On her "MDS Nurses Summary" from July 27 and July 28, 2017, she noted that Zion was only alert and oriented to himself, that he had both short-and long-term memory problems, and that he still could not recall the current season, location of his room, staff names, or whether he was in a nursing home. He now had an even lower BIMS score of 2. He sometimes could understand others, but rarely or never was able to express his own ideas or wants.
¶15. Based on Durant Healthcare's Pre-Screening Assessments, on July 26, 2017, the Mississippi Department of Mental Health approved Zion for nursing-home level of care and specialized treatment for mental illness.
¶16. During the course of his stay at Durant Healthcare, Zion suffered from severe bedsores and on July 19, 2019, Zion died. The list of causes on his death...
To continue reading
Request your trial