Court reviews whether a nurse assistant abused an elderly person in his care at a nursing home.

DANIEL A. RILEY, C.N.A. v. JOHN DREYZEHNER, M.D., M.P.H., IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE TENNESSEE DEPARTMENT OF HEALTH (Tenn. Ct. App. October 22, 2012)

Appellant nurse assistant’s name was placed on the Abuse Registry after the Appellee Tennessee Department of Health concluded that he had committed an act of abuse on an elderly person in his care at a nursing home. Appellant appeals, arguing that substantial and material evidence does not exist to show that he committed an act of abuse on the nursing home resident. Having determined that substantial and material evidence in the record supports the decision of the Tennessee Department of Health, we affirm.

Opinion available at:
https://www.tba.org/sites/default/files/rileyd_102212.pdf

Court reviews whether an agency relationship existed between a mother and her son for the purpose of enforcing an arbitration agreement

DENNIS W. BLACKMON, ET AL. v. LP PIGEON FORGE, LLC, ET AL. (Tenn. Ct. App. August 25, 2011)

This is a nursing home negligence case involving an arbitration agreement. The son of the decedent signed documents admitting his mother to the defendant nursing home. The admission documents included an arbitration agreement. After his mother's death, the son filed a lawsuit on behalf of her estate against the defendant nursing home and others connected to its administration. The defendants filed a motion to compel arbitration pursuant to the agreement signed by the son. The trial court denied the motion, finding that the son was not the decedent's agent and did not have authority to sign on her behalf. The defendants appeal. We affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/blackmond_082511.pdf

Court reviews whether a claim against an assisted living facility was a negligence or a medical malpractice claim.

CATHY VICE, ET AL. v. ELMCROFT OF HENDERSONVILLE, ET AL. (Tenn. Ct. App. August 23, 2011)

The daughter of an eighty-seven year old woman was looking for an assisted living facility for her mother, who was suffering from dementia. Elmcroft of Hendersonville assured the daughter that it could care for her mother and admitted her after the daughter informed it of her concern about her mother's risk for falls. Three weeks following her admission the mother fell, and then fell three more times before the daughter moved her out of Elmcroft. The final fall resulted in a broken clavicle, which caused the mother pain and decreased mobility for the rest of her life.

The daughter, as her mother's representative, sued Elmcroft and its administrator for negligence and negligent admission and retention of her mother. A jury awarded a judgment against the defendants for $250,000. There was evidence the Elmcroft staff did not follow Elmcroft's fall prevention policies and procedures.

Elmcroft argued that all claims filed against it involved matters of medical science or art requiring specialized skills not ordinarily possessed by lay persons, and, therefore, this was a medical malpractice which should have been dismissed since the statutory requirements for such a claim had not been met.

We conclude, based on the evidence herein, that the claims were ordinary negligence claims. Elmcroft also argued (1) the trial court erred in refusing to instruct the jury on the negligence of the daughter and a physician from another state who indicated the mother may be cared for by an assisted living facility and (2) that the jury award was excessive, contained a punitive component, and was the result of passion, prejudice and caprice.

We conclude the court did not err in refusing to charge the jury on the physician's comparative fault or the daughter's comparative negligence. We also conclude there was material evidence to support the jury's award of damages. Consequently, we affirm.

Opinion available at:
http://www.tba2.org/tba_files/TCA/2011/vicec_082311.pdf

Court reviews jurisdiction of a wrongful death case against a nursing home

ALLISON J. PERSON ET AL. v. KINDRED HEALTHCARE, INC., d/b/a PRIMACY HEALTHCARE AND REHABILITATION CENTER, ET AL. (Tenn. Ct. App May 7, 2010)

This is an action for negligence and wrongful death filed against a nursing home by the administrator of decedent patient's estate. The trial court denied Defendant nursing home's motion to dismiss or, in the alternative, for summary judgment upon finding decedent patient was not competent to execute the power of attorney pursuant to which decedent's daughter had executed an arbitration agreement with Defendant. Defendant appeals. We dismiss the appeal for lack of jurisdiction.

Opinion may be found at:
http://www.tba2.org/tba_files/TCA/2010/persona_050710.pdf

Arbitration Agreement within 11 page contract found enforcible due, in large part to signature

CORINE BROADNAX, Individually and as heir and on behalf of the Estate of Mary Alice Johnson v. QUINCE NURSING AND REHABILITATION CENTER, LLC, ET AL. (Tenn. Ct. App. April 22, 2009)

The parties to a nursing home Admission Agreement dispute the enforceability of its arbitration provision. The trial court refused to enforce the arbitration provision. The nursing home appealed. For the following reasons, we reverse the decision of the circuit court and remand for entry of an order compelling arbitration.

The entire text of this opinion can be found at the TBA website:
http://www.tba2.org/tba_files/TCA/2009/broadnaxc_081009.pdf

“Although we agree that mutual assent is essential to the formation of a contract, mutual assent is gathered from the language of the contract rather than the unexpressed or undisclosed intentions of the parties. 'The law conclusively presumes that the parties to a contract understood its obligations, and evidence is not admissible to show that their understanding was in fact otherwise.’” Id. (Case Citations Omitted)

“Based on the cases cited above, we find it inappropriate to relieve Ms. Broadnax from the operation of the Arbitration Agreement, due to her failure to read the document before signing it. In so ruling, we note that Ms. Broadnax had the ability to ask questions concerning the documents, was free to seek independent legal advice, and was given ample time to review the documents.” Id.

“Moreover, the Arbitration Agreement expressly stated that by signing such, Ms. Broadnax was 'giving up and waiving [her] constitutional right to have any claim decided in a court of law before a judge and a jury,' that execution was not a precondition to admission or the furnishing of services, and that it could be rescinded within thirty days. We further note that although the Arbitration Agreement was attached to a somewhat lengthy document, the Admission Agreement contained a table of contents, which should have drawn Ms. Broadnax’s attention to the inclusion of the Arbitration Agreement, which was a separate exhibit. Because Ms. Broadnax has failed to prove that Nursing Home either misrepresented the terms of the Arbitration Agreement or acted fraudulently in inducing her to sign such, we find that Ms. Broadnax’s signature evidences her assent to be bound by the Arbitration Agreement’s terms.” Id.