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About Adam Peck 
Nursing Home Petitions: The U.S. Supreme Court has refused to hear appeals of two state court decisions that nursing home residents’ descendants may bring wrongful death suits against the facilities despite the existence of signed arbitration agreements.
Both cases involve daughters who signed arbitration agreements on behalf of their mothers. After the mothers died, the daughters sued the nursing home for wrongful death, and the nursing home moved to compel arbitration.
In Ping v. Beverly Enterprises (Ky., No. 2010–SC–000558–DG, Aug. 23, 2012), Donna Ping was her mother’s attorney-in-fact under a general power of attorney when she signed the arbitration agreement. The Kentucky Supreme Court held that because the power of attorney did not authorize Ms. Ping to do more than make financial, property-related, and health care decisions, the arbitration agreement was beyond the scope of Ms. Ping’s authority and therefore unenforceable against her mother’s estate and wrongful death beneficiaries.
In Carter v. SSC Odin Operating Co. (Ill., No. 113204, Sept. 20, 2012), Sue Carter signed an arbitration agreement on behalf of her mother without a power of attorney. The Illinois Supreme Court ruled that because Ms. Carter signed as her mother’s “legal representative,” she had to arbitrate only if she was acting in her mother’s stead in prosecuting the wrongful death claim, which the court ruled she was not.
The nursing home companies appealed, arguing the Federal Arbitration Act (FAA) preempts state laws like those in Illinois and Kentucky that treat wrongful death claims as an independent cause of action. Other states, such as Texas, treat wrongful death claims as “derivative,” meaning that descendants would be constrained by arbitration agreements. The Supreme Court previously ruled that West Virginia nursing home residents’ families may be forced to arbitrate their negligence claims against the nursing homes because the state public policy that prevents arbitration agreements from being enforced in negligence and personal injury cases is preempted by the FAA (Marmet Health Care Center v. Brown, U.S., Nos. 11–391 and 11–394, Feb. 21, 2012).
The U.S. Supreme Court refused to hear both cases without comment (Beverly Enterprises v. Ping, U.S., No. 12-652, April 22, 2013 and SSC Odin Operating Co., U.S., No. 12-1012, April 22, 2013).
