Atlanta Injury Lawyer Blog

Articles Posted in Arbitration

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pen and inkSince passage of the Federal Arbitration Act of 1925, arbitration clauses have become a commonplace, if not boilerplate, provision utilized in contracts executed in the United States. However, given the ubiquity of adhesion contracts, many people are often unaware they are waiving the right to have their grievances decided in court and, more importantly, many of the procedural safeguards that exist in the judicial setting. However, even when parties have agreed to arbitrate, one can occasionally avoid compelled arbitration. Avoidance of mandatory arbitration is at the core of today’s case, Sunbridge Retirement Care Associates, LLC v. Smith (PDF-embedded link).

Sunbridge concerns an arbitration agreement between Cartersville Heights Care and Rehabilitation Center (“Cartersville”), a skilled nursing and rehabilitation center and the plaintiff in this action, and the daughter of a now-deceased resident of the facility. The agreement was executed on November 24, 2009, when the resident was in the admission process. The daughter had the power of attorney to enter into agreements on behalf of the resident, and she signed the arbitration agreement, which provided that “any and all claim or controversies arising out of or in any way relating to this agreement, the admission agreement or any of the resident’s stays at the Facility … shall be submitted to binding arbitration.” The agreement further provided that “the arbitrator shall apply the [National Arbitration Forum (“NAF”)] Code of Procedure,” which in turn provides that the Code governs the arbitration proceedings, unless the parties agreed otherwise. The Code further provided that in the event the parties are denied an opportunity to arbitrate, they retain the right to seek legal or other remedies.

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ResearchWith further progress in modern medicine and the concomitant increase in life expectancy, an increasing number of Americans find themselves living for a longer period of time than their predecessors. Increased life expectancy is certainly a positive, but many among America’s elderly population now find themselves living in nursing homes or other assisted living facilities and depending on others to provide them with care. While much of the care provided by nursing home professionals conforms to standards we expect, there remain cases when care does fall far short. One instance of possible elder negligence is at issue in a recent decision from the Georgia Court of Appeals, McKean v. GGNSC Atlanta, LLC.

McKean arose from the death of an elderly resident at Golden Living Center nursing home. The resident had been admitted to Golden Living on March 9, 2012, and remained at the facility until her death on May 19. At the time of her admission, the resident had been suffering from the recent onset of paraplegia caused by a subarachnoid hemorrhage. During the short period of time between the admission and her death, the resident developed various serious medical issues. Following the death, the son of the resident brought suit against Golden Living in his capacity as executor of his late mother’s estate in the State Court of Fulton County. The cause of these medical issues is still in dispute, since shortly after the case was brought the defendant moved to dismiss and compel arbitration, arguing that an Alternative Dispute Resolution (ADR) agreement signed by the son required that all disputes between the parties to the agreement shall be resolved through an alternative dispute resolution arbitration process. The trial court granted the motion, and the plaintiff appealed.

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