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Philadelphia Judge Holds Survival Action in Nursing Home case Must be Handled via Arbitration

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In a case of first impression, Philadelphia County Court of Common Pleas Judge Mark I. Bernstein held that a survivorship action, brought in conjunction with a wrongful death claim, must be sent to arbitration pursuant to the federal preemption doctrine. 

The underlying case of Lipshutz v. St. Monica Manor involved an elderly woman who was hospitalized following a stroke.  Given the cognitive injuries she sustained, she was subsequently transferred to the defendant nursing home.  At that time, the plaintiff, the resident’s only living daughter and attorney-in-fact, executed an admission agreement which contained a mandatory arbitration clause.  Under the terms of the arbitration clause, any survivorship action brought on behalf of the resident had to be handled out of court in an arbitration setting.  Thereafter, the resident died in the nursing home, and her daughter filed suit in the Philadelphia County Court of Common Pleas, setting forth claims sounding in wrongful death and survival.  Counsel for the nursing home then moved to bifurcate the claims and move the survival action into arbitration, pursuant to the plaintiff’s arbitration agreement.   

Notwithstanding the fact that the Pennsylvania Rules of Civil Procedure require claims for wrongful death and survival to be litigated together, Judge Bernstein held that in the presence of the arbitration agreement, Pennsylvania state law was preempted by the Federal Arbitration Act.  As such, he noted that “[w]ere this court to order both the wrongful death claim and survival actions to remain in court, the decedent’s arbitration agreement, valid through her daughter’s signature, would be nullified.  Such nullification is pre-empted by the FAA and recent United States Supreme Court interpretations.”  According to Judge Bernstein, such interpretations included the recent case of Marmet Health Care Center v. Brown, 132 S. Ct. 1201 (2012), wherein the United States Supreme Court held that nursing home arbitration agreements were entitled to the same protection and enforcement as any other contract, and that no exception may be made for wrongful death or survival claims arising from care rendered in these facilities. 

While the Federal Arbitration Act required the plaintiff’s survival action to be removed to arbitration, Judge Bernstein noted that the plaintiff could still pursue her right in court, as well as the rights of other beneficiaries, under a claim for wrongful death. 


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