Kindred Nursing Ctrs. Ltd. P'ship v. Chrzanowski

Decision Date28 September 2016
Docket NumberA16A0803
Citation791 S.E.2d 601,338 Ga.App. 708
Parties Kindred Nursing Centers Limited Partnership et al. v. Chrzanowski et al.
CourtGeorgia Court of Appeals

Walter H. Bush Jr., Christopher Bryan Freeman, Atlanta, for Appellant.

Carl R. Wilander, for Appellee.

Miller

, Presiding Judge.

This wrongful death case raises the question of whether the trial court properly determined that Jeanne Chrzanowski (“Jeanne”) lacked capacity to enter into an agreement to arbitrate with Kindred Nursing Centers.1 The trial court concluded that Jeanne lacked the necessary capacity at the time she entered into the agreement and denied Kindred Nursing Centers' motion to dismiss or to stay and to compel arbitration of the wrongful death and negligence claims filed by Jeanne's estate. After a thorough review of the record, we conclude that the trial court applied an incorrect standard and improperly shifted the burden of proof. Accordingly, we vacate the trial court's order and remand for further proceedings.

We review the record in this case de novo to determine whether the trial court's denial of the motion to compel arbitration is correct as a matter of law.” (Citation omitted.) Ashburn Health Care Center, Inc. v. Poole , 286 Ga.App. 24, 648 S.E.2d 430 (2007)

.

So viewed, the evidence shows that in November 2011, Jeanne was living alone when she fell at home and broke her ankle. On December 4, 2011, following surgery, Jeanne was admitted to Kindred Nursing Centers in Marietta for rehabilitation.

According to Jeanne's medical records from the hospital and Kindred Nursing Centers, she suffered from COPD, coronary artery disease

, hypertension, and a history of some cognitive impairment. In the month before her fall, Jeanne went to the emergency room twice within a few days, and reported feeling “loopy” and out of sorts, with some memory loss. The second time she went, she had no recollection of her prior visit just 48 hours earlier. A neurological consult identified an altered mental state, with mild cognitive impairment, depression, and some amnesia. Nevertheless, at the hospital after her fall in November, Jeanne was alert and oriented, and she was able to understand and consent to her treatment plan.

At the time of her admission to Kindred Nursing Centers, Jeanne required oxygen, narcotic pain medications, and antibiotics to treat a urinary tract infection

. Although her son and daughter-in-law accompanied Jeanne upon her arrival to Kindred Nursing Centers, the admissions team did not complete the paperwork with Jeanne until a few days later, on December 7. The paperwork included an alternative dispute resolution agreement (“the ADR Agreement”), providing that,

[a]ny and all claims or controversies arising out of or in any way related to this Agreement, including interpretation of this Agreement, or the Resident's stay at, or the care or services provided by, the Facility, whether arising out of State or Federal law, whether existing or arising in the future, whether for statutory, compensatory, or punitive damages, and whether sounding in breach of contract, tort, or breach of statutory or regulatory duties (including, without limitation, any claim based on violation of rights pursuant to O.C.G.A. § 31–8–126

, negligence, medical malpractice, any other departure from accepted standards of health care or safety, or a claim for unpaid nursing home charges), irrespective of the basis for the duty or of the legal theories upon which

the claim is asserted, shall be submitted to ADR as described in this Agreement.

The ADR Agreement indicated that signing it was “voluntary” and “optional.” The assistant admissions coordinator Sandra Stodghill met with Jeanne to discuss the paperwork, and Jeanne signed the ADR Agreement.

Following her admission to Kindred Nursing Centers, various assessments concluded that Jeanne experienced periods of confusion and forgetfulness. Specifically, on December 5, two days before Jeanne signed the ADR Agreement, occupational therapy evaluated Jeanne and reported that she was confused, even though she was able to participate in establishing her plan of care. In weekly progress notes from December 5 through December 12, occupational therapy reported that Jeanne was very anxious and confused, commenting to staff, “look at the walls, they are coming out.”

In addition, a speech pathologist evaluated Jeanne on December 7 and found that she was severely impaired in understanding yes and no questions; moderately impaired in concentration, understanding sentences, and conversation; and moderately to severely impaired in memory, reasoning, and judgment. That same day, a dietician performed a nutrition therapy assessment and found Jeanne was very confused and could not remember if she had eaten breakfast. Another assessment determined that Jeanne was at risk for falls due to weakness, medications, confusion, and forgetfulness.

The history and physical completed on December 8 noted that nursing staff reported that Jeanne was more confused than usual. The following day, however, progress notes indicated that even though Jeanne experienced “poor cognition from time to time,” Jeanne was alert and oriented to person and time, could understand others, had no visual or hearing deficits, and wanted to return to independent living after rehabilitation.

In the weeks following her admission, Jeanne's condition declined, resulting in additional falls and hospitalizations. Jeanne died on April 25, 2012.

Thereafter, Jeanne's sons Michael Chrzanowski, on behalf of himself and as administrator of Jeanne's estate, and Alan Chrzanowski (collectively “the Chrzanowskis”) filed this wrongful death and negligence suit against Kindred Nursing Centers. Kindred Nursing Centers moved to dismiss the suit and compel arbitration, arguing that the claims were subject to arbitration under the ADR Agreement. The Chrzanowskis opposed the motion, arguing that Jeanne lacked the capacity to enter into the ADR Agreement.

In ruling on Kindred Nursing Centers' motion to compel arbitration, the trial court had the deposition testimony of Jeanne's son and daughter-in-law, Michael and Deborah Chrzanowski; the deposition testimony of the Chrzanowskis' expert, Dr. Daniel Lively; the hearing testimony of assistant admissions coordinator Sandra Stodghill; and the hearing testimony of Kindred Nursing Centers' expert, Dr. Gary Grove.

In her deposition, Deborah Chrzanowski testified that Jeanne lived alone prior to her fall, was somewhat independent, and continued to drive. The family noticed that Jeanne needed more assistance with some things as early as 2010, and they began to see changes in Jeanne's mental capacity. When Jeanne was in the hospital after her ankle surgery, she seemed confused about the time of day, and sometimes forgot whether she had eaten. Deborah admitted, however, that at the time of her admission to the nursing home, Jeanne knew where she was, knew that she had broken her ankle, and knew that she would need to stay in the nursing home for some time. In fact, Jeanne was “mad” and wanted to leave. Deborah testified that, in the few weeks after her admission, Jeanne became more confused and forgetful.

Michael Chrzanowski testified that his mother suffered from dementia and Alzheimer's disease

and was deteriorating mentally since 2010. Michael offered contradictory testimony about whether Jeanne was able to drive. He further testified that before her fall in November, Jeanne was often forgetful, would leave the oven on, forget to pay bills, and no longer did household chores. He explained that Jeanne was “out of it” while in the hospital after her surgery, and she yelled that people were out to get her and that she was going to call the police. In contradiction to Deborah's testimony, Michael testified that when Jeanne was admitted to Kindred Nursing Centers, she did not know where she was or what was happening. He believed her mental status declined while she was in Kindred Nursing Centers.

Dr. Lively, who was certified in internal medicine and geriatrics, testified on behalf of the Chrzanowskis. Dr. Lively stated that based on the medical records from the hospital and Kindred Nursing Centers, in his opinion, Jeanne lacked the capacity to sign the ADR Agreement. He also reviewed Michael Chrzanowski's deposition, which corroborated his conclusion that Jeanne suffered from dementia.

According to Lively, the evaluations done in October, coupled with the records from Kindred Nursing Centers, verified that Jeanne was experiencing chronic dementia

. Lively further opined that there was no evidence of “waxing and waning” mental status or periods of lucidity. Rather, Jeanne's records showed that she had a series of medical problems that were likely to produce dementia, including COPD, coronary artery disease, depression, and oxygen dependency. Moreover, Dr. Lively opined that Jeanne suffered from progressive dementia

and medication-induced delirium resulting from her pain medications and the use of anesthesia during surgery. He further opined that Jeanne's dehydration and urinary tract infection altered her mental status. Lively explained that drops in oxygen levels from COPD or the improper use of oxygen could result in confusion and memory loss. Thus, Lively testified that after reviewing the records, it was his opinion, to a reasonable degree of medical certainty, that Jeanne suffered from significant cognitive impairment and lacked the capacity to understand the ADR Agreement at the time she signed it.

In support of their motion to compel arbitration, Kindred Nursing Centers offered the testimony of assistant administrator Stodghill, who had completed the paperwork and ADR Agreement with Jeanne two days after Jeanne was admitted. Stodghill remembered that Jeanne seemed to be intelligent, alert, and oriented. She testified that Jeanne was adamant about looking over all the paperwork and signing it, and Jeanne did not ask any questions. Stodghill further stated that she...

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    ...determine that issue and, accordingly, grant or deny the application for an order to arbitrate.’ " Kindred Nursing Centers v. Chrzanowski , 338 Ga. App. 708, 713 (1), 791 S.E.2d 601 (2016), quoting OCGA § 9-9-6 (a). Whether the contracting parties have submitted a particular dispute to arbi......
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    ...of the motion to compel arbitration is correct as a matter of law." (punctuation omitted)); Kindred Nursing Ctrs. Ltd. Partnership v. Chrzanowski , 338 Ga. App. 708, 708-09, 791 S.E.2d 601 (2016) (same).3 See Schinazi , 351 Ga. App. at 156, 830 S.E.2d 531 ("[W]e defer to the trial court's f......
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