Category Archives: [13:6] Administrative ADR; Statutory Rights ADR

A Valentine Scorned

By Alex Salzillo on | Leave a comment

Mae West once said, “All discarded lovers should be given a second chance, but with somebody else.” (emphasis added).

Not even a year off of its Supreme Court Smackdown in Marmet Health Care Ctr., Inc. v. Brown, the West Virginia Supreme Court has taken on the Law of the Land in another battle of wills.

Almost exactly one year ago, the West Virginia Supremes held that a wrongful death claim against a nursing home was not subject to arbitration, as it violated West Virginia’s public policy. Much to their chagrin, the Supreme Court of the United States promptly rejected this posture, holding that the federal policy favoring arbitration trumped West Virginia’s public policy against such nursing home arbitration agreements. The legal coverage of this case was extensive, and many legal commentators saw the West Virginia case as the potential death of the “public policy exception” to the scope of the Federal Arbitration Act (“FAA”). 9 U.S.C. § 1 et seq.

The West Virginia Supreme Court, in a recent case, has taken on the supremacy of the FAA once again in its interpretation of a nursing home contract. In State ex rel. AMFM, LLC v. King, the West Virginia Supremes considered the scope of what the daughter of a terminally ill (and allegedly abused) patient signed in the admission documents to a nursing home facility. Reasoning that the signing daughter only had the authority to make “medical decisions” for her mother, the West Virginia Supremes found that the agreement to admit her mother to the nursing home was not a “medical decision” for purposes of the arbitration agreement. Therefore, the daughter, as the mother’s “health care surrogate,” was permitted to sue for the wrongful death of her mother under West Virginia law.

This decision will almost certainly be appealed under the standard set forth in Marmet, but whether West Virginia’s public policy will survive is an entirely different question…

The West Virginia Supreme Court opinion is available here, and the cite is State ex rel. AMFM, LLC v. King, No. 12-0717, 2013 WL 310086 (W. Va. Jan. 24, 2013).

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Legislation expanding workers’ compensation mediation program

By georgiaadr on | Leave a comment

Georgia HB 661, amending O.C.G.A. 33, Chap. 9, includes a provision that refer disputes between health care insurers and workers comp insurers to the Alternative Dispute Resolution Division of the State Board of Workers’ Compensation. Although the act is stated in the mandatory, i.e., “the entity´s right to reimbursement shall be resolved by referral,” the health care insurer has the choice of initiating the mediation. Reflecting an obvious misunderstanding of mediation, the act provides that the “losing party” pay the cost of the mediation. To confuse things further, despite the fact that the ADR Division is already operational and that the “loser” covers the costs, the act shall become effective only if funds are specifically appropriated and become available for expenditure.

Posted in: [13:6] Administrative ADR; Statutory Rights ADR