Federal court allows whistleblower to pursue charges against Omnicare

If the U.S. Supreme Court thought it had the final word on the validity of certain nursing home admissions arbitration agreements in 2012, well, it was wrong.

Last year, the U.S. Supreme Court overruled the West Virginia state Supreme Court’s decision that arbitration was not appropriate for nursing homes and former residents’ estates to settle claims. It is, countered the robed men and women in our nation’s capital.

But now, West Virginia judges are endorsing a new way for family members to sue their loved ones’ former caregivers.

In late January, the West Virginia Supreme Court unanimously ruled that some relatives who check a loved one into a nursing home couldn’t sign away a person’s right to a courtroom jury trial. It leaves an untold number of signed agreements in doubt.

The case in question features a daughter, Nancy Belcher, who signed an arbitration agreement when she checked her mother into McDowell Nursing & Rehabilitation Center in Gary, WV. Belcher was designated her mother’s “healthcare surrogate.”

After the mother, Beulah Wyatt, died in 2010, a circuit court judge ruled the arbitration agreement invalid because her daughter had been empowered to make only medical decisions, not legal ones of this kind. After an appeal by AMFM, which had owned the facility, the state Supreme Court upheld the decision.

AMFM attorney Mark Robinson predicted in a published report that the ruling “will affect a certain percentage — maybe 10 percent, 25 percent, maybe more.”

The state ruling is not considered broad. It nullifies arbitration agreements signed only by people with “medical” or “healthcare” appointed responsibilities. People who are given “durable power of attorney,” which is a broader designation than “medical power of attorney,” may still be considered rightful legal signers, the courts ruled.

Some legal observers also believe that if a resident signs an arbitration agreement before dying, relatives still may sue because they were not party to the arbitration signing and still have a claim. Providers hotly contest this position.