Hogsett v. Parkwood Nursing & Rehab. Ctr., Inc.

• Decision Date: 18 February 2014
• Docket Number: Civil Action No. 1:12–cv–1399–JEC.
• Citation: 997 F.Supp.2d 1318
• Parties: Shervon HOGSETT, individually, and as Administratrix of the Estate of Patricia Joyner, deceased, and Gary Joyner, individually, Plaintiffs, v. PARKWOOD NURSING & REHABILITATION CENTER, INC., Parkwood Living Center, LLC, HMR Advantage Health Systems, Inc., Scepter Health & Rehab of Snellville, LLC, Covenant Dove, Inc., Covenant Dove, LLC, Covenant Dove Holding Company, LLC, ARK Holding Company, Inc., and ARK Holdings, LLC, Defendants.
• Court: U.S. District Court — Northern District of Georgia

997 F.Supp.2d 1318

Shervon HOGSETT, individually, and as Administratrix of the Estate of Patricia Joyner, deceased, and Gary Joyner, individually, Plaintiffs,

v.PARKWOOD NURSING & REHABILITATION CENTER, INC., Parkwood Living Center, LLC, HMR Advantage Health Systems, Inc., Scepter Health & Rehab of Snellville, LLC, Covenant Dove, Inc., Covenant Dove, LLC, Covenant Dove Holding Company, LLC, ARK Holding Company, Inc., and ARK Holdings, LLC, Defendants.

Civil Action No. 1:12–cv–1399–JEC.

United States District Court,

N.D. Georgia,

Atlanta Division.

Feb. 18, 2014.

Steven Salcedo, Law Office of Steven Salcedo, LLC, Decatur, GA, Wayne D. Toth, The Toth Law Firm, LLC, Atlanta, GA, for Plaintiffs.

Jason E. Bring, W. Jerad Rissler, Arnall Golden & Gregory LLP, Atlanta, GA, for Defendants.

AMENDED ORDER & OPINION

JULIE E. CARNES, Chief Judge.

This case is before the Court on defendants' Motion to Dismiss or Stay Proceedings and Compel Arbitration [4] and defendant Covenant Dove Holding Company's Motion to Dismiss for Lack of Personal Jurisdiction [3]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendants' Motion to Dismiss or Stay and Compel Arbitration [4] should be DENIED and that defendant Covenant Dove Holding Company's Motion [3] should be GRANTED as unopposed.

BACKGROUND

On March 11, 2010, the defendant long-term care facility Parkwood Nursing and Rehabilitation Center (“Parkwood”) admitted 63–year old Patricia Joyner. (Compl. [1] at 8–9.) Doctors had recently amputated the lower part of Joyner's left leg, and the goal of Joyner's stay at Parkwood was for her to regain limited mobility so that she might live on her own with caregiver assistance. ( Id.) Joyner was listed in “fair” condition upon her arrival at Parkwood, and there is no indication that she was not coherent or that she was unable to make decisions. ( Id.)

When Joyner was admitted to Parkwood, her daughter Shervon Hogsett signed numerous papers on her mother's behalf, including an arbitration agreement. (Defs.' Mot. to Dismiss or Stay and Compel Arbitration [4] (“Defs.' Mot. to Dismiss”) at Exs. A & B.) The arbitration agreement is quite broad, covering all potential disputes related to Joyner's stay at Parkwood, including any contractual disputes or torts.¹ The agreement explicitly provides: “This agreement to arbitrate constitutes a waiver of the right to a trial by jury.” ( Id. at Ex. B.)

On the last page of the arbitration agreement, below the sentence “I AGREE TO THE TERMS OF THIS AGREEMENT TO ARBITRATE,” there is a line on which the name of the resident is to be printed and a line where the signature of the resident is to be affixed. ( Id.) On the line calling for the printed name is the correct name of the resident: “Patricia Joyner.” ( Id.) However, the signature line for the resident is blank. ( Id.) Just below this section, there are two lines for the printed name and signature of the “legal representative/caretaker.” (Defs.' Mot. to Dismiss [4] at Ex. B.) These lines contain the printed name and signature ² of Shervon Hogsett, along with the date “3–11–10.” ( Id.) Finally, just below the lines for the legal representative are two lines calling for the printed name and signature of the Living Center representative, which contain the name “Cara Waiswilos” and the date “3/11/10.” ( Id.)

An admission agreement was also presented to Hogsett for her signature. ( Id. at Ex. A.) The admission agreement states that the term “resident” refers to the resident,

or where applicable to any person who may under Georgia law, act on the resident's behalf when the resident is unable to act for himself or herself, or where applicable any person who the resident has delegated decision-making authority. The resident's incapacity or delegation of decision-making authority must be documented in the living center's records in compliance with applicable Georgia statutes. The resident must provide copies of any existing powers of attorney, court orders or other applicable documentation prior to admission.

( Id. at 2.)

The admission agreement contains several pages of information about the care to be provided by the Center, as well as the financial obligations of the resident. At the conclusion of the agreement, there is an authorization for payment and release of information, with accompanying signature lines. (Defs.' Mot. to Dismiss [4] at Ex. A, 12.) The “signature” line was completed by “Shervon J. Hogsett” and witnessed by “CWaisilos.” ( Id.) Below the signature is the following admonition: “Note: If the resident is unable to sign, complete authorizing signature Section below.” ( Id.) Under that note is a line marked “Authorized Signature and Relationship” and “Reason Resident Could Not Sign.” ( Id.) In the block for authorized signature and relationship is the hand-written abbreviation “dtr,” which presumably stands for “daughter,” and in the block for the reason why the resident could not sign are the hand-written words “not present.” ( Id.)

In short, Hogsett signed the arbitration agreement for her mother, Patricia Joyner. Joyner did not sign any of the admissions paperwork. Although Hogsett signed the agreement under the blank calling for “legal representative/caretaker,” the parties agree that Hogsett had no legal status as her mother's representative.³ That is, Hogsett had no power of attorney nor was she her mother's guardian. Neither is there any indication that Hogsett represented to Parkwood staff that she had any such legal status.

Eight days after Joyner was admitted, her doctor provided Parkwood with a recommendation regarding the treatment of a wound on Joyner's partially amputated left leg. (Compl. [1] at 9.) According to plaintiffs, no one at Parkwood acted on the recommendation between March 19 and March 22, 2010, leading to a deterioration in Joyner's condition. ( Id.) By the time she received treatment, Joyner's leg was infected beyond repair. ( Id.) Joyner died in a nearby hospital on March 26, 2010, fifteen days after her admittance to the Parkwood facility. ( Id.)

Plaintiffs are Joyner's daughter Hogsett and her son Gary Joyner. They have sued defendant Parkwood and affiliated entities, asserting negligence, breach of contract, wrongful death, and other claims. Plaintiffs Hogsett and Gary Joyner have brought the wrongful death claims in their individual capacities. Plaintiff Hogsett also originally brought claims in her representative capacity on behalf of Joyner's estate, but has now dismissed those claims.⁴

Defendants seek to dismiss plaintiffs' claims and to compel arbitration on those claims based on the agreement signed by Hogsett.⁵ Plaintiffs argue that the arbitration agreement is not binding on them, as Ms. Joyner never signed the agreement and as Hogsett had no authority to bind her mother to such an agreement. Defendants argue that plaintiffs should be bound by Ms. Hogsett's signature on the arbitration agreement.

DISCUSSION

I. ENFORCEABILITY OF ARBITRATION AGREEMENT AS TO CLAIMS NOT MADE BY PLAINTIFF SHERVON HOGSETT IN HER INDIVIDUAL CAPACITY: THAT IS, ALL ESTATE CLAIMS AND INDIVIDUAL CLAIMS MADE BY GARY JOYNER

A. Claims at Issue

As noted above, two types of claims were originally brought in this case: claims brought on behalf of the estate by its representative Shervon Hogsett and claims brought by the individual plaintiffs, Shervon Hogsett and Gary Joyner. The parties do not address how these claims differ, but as defendants arguably have a stronger ground for compelling arbitration on Shervon Hogsett's individual claims, it is important to have some idea what the differences might be. The Court assumes that estate claims would be those claims that would have been available to Ms. Joyner had she not died, such as any pain and suffering she endured and medical expenses she incurred as a result of the defendants' alleged negligence, as well as any funeral expenses, given that she did, in fact, die. The individual claims would be those claims available to daughter Hogsett and son Gary Joyner based on the death of their mother.

As noted, plaintiff Hogsett, as the representative of the estate, has dismissed all estate claims, apparently because she did not file a medical affidavit as required by Georgia law for medical malpractice claims. See O.C.G.A. § 9–11–9.1. Defendantssuggest in their briefing ⁶ that the only remaining claims are the wrongful death claims ⁷ of the two individual plaintiffs: Shervon Hogsett and Gary Joyner. The Court will assume this to be so.

Yet, while it is true that the estate claims are now gone, it is still important to analyze the effect of the arbitration agreement on any such estate claims. This is so because if the decedent Joyner agreed to arbitrate any claims against defendants, then presumably her survivors on a wrongful death claim would be bound by that agreement as a wrongful death claim would be derivative of the medical malpractice claim that the decedent could have made. Conversely, if the arbitration agreement is deemed to be invalid and not binding on decedent Joyner or her estate, then it presumably would not be binding on her survivors' individual wrongful death claim.

B. Did Hogsett Have the Power to Bind Her Mother to an Arbitration Agreement?

1. Parties' Contentions

Defendants correctly note that federal law favors the enforceability of arbitration agreements, even if there is arguably inconsistent state law disfavoring arbitration. See generally Marmet Health Care Ctr., Inc. v. Clayton Brown, ––– U.S. ––––, 132 S.Ct. 1201, 182 L.Ed.2d 42 (2012) (per curiam) (Federal Arbitration Act permits enforcement of arbitration agreement entered into between residents and nursing homes, despite potentially contrary state law) (citing U.S. Const., art. VI, cl. 2). So while Georgia may have a strong interest in protecting its nursing home residents, this policy does not, as plaintiffs suggest, preclude care...