Professional Negligence Law Reporter

A Georgia appellate court held that an arbitration agreement was unenforceable where there was a lack of sufficient evidence that the parties had mutually assented to the agreement.

Kasey Welch, who had autism and developmental delays, was admitted to the Parkwood Developmental Center. At the time, her mother, who had full decision-making authority, signed an admission application and arbitration agreement. The agreement had spaces for initialization, but Welch’s mother left these blank. Additionally, no one at the facility signed the agreement on behalf of Parkwood or its operator, Lowndes County Health Services, LLC (LCHS).

Welch later choked while eating dinner in the Parkwood dining room and died the next day. Her mother’s attorneys wrote to LCHS, making a settlement demand regarding claims arising from Welch’s death. The letter also stated that the mother considered the arbitration agreement unenforceable but that she was withdrawing her assent to the purported agreement notwithstanding this. Welch’s mother, individually and on behalf of her estate, sued LCHS for malpractice and wrongful death. LCHS moved to compel arbitration, and the trial court granted the motion.

Reversing, the appellate court found that arbitration is a contractual matter, and a party seeking arbitration must prove the existence of a valid and enforceable contract. Valid contracts in Georgia require parties able to contract, consideration, assent, and a subject matter upon which the contract can operate, the court said. Here, the agreement was neither dated nor signed by LCHS, which did not seek to enforce it before the plaintiff revoked the purported agreement to arbitrate. Therefore, there was no agreement or meeting of the minds after this revocation, the court found, concluding that the arbitration agreement was thus unenforceable.

Accordingly, the court held that the trial court had erred in granting the defendant’s motion to compel arbitration.

Citation: Hunter v. Lowndes Cty. Health Servs., LLC, 2020 WL 2984482 (Ga. Ct. App. June 4, 2020).

Plaintiff counsel: Ervin H. Gerson and Paul D. Hermann, both of Atlanta.