Professional Negligence Law Reporter

GGNSC Louisville Hillcreek, LLC v. Bramer, 2019 WL 3519694 (6th Cir. Aug. 2, 2019).

The Sixth Circuit Court of Appeals held that arbitration agreements purportedly executed during a nursing home resident’s first two admissions to a facility did not apply to claims arising out of his third, and final, admission.

Robert Bramer was admitted to the Golden Living Center-Hillcreek nursing home three times in an 18-month period. During each of these admissions, the home presented him with an admissions packet that contained an arbitration agreement and a “remain in effect” clause. The first agreement showed an illegible mark near the signature block, and Bramer’s wife signed the second agreement on the resident signature line. The third agreement was left unsigned.

During the final admission, Bramer fell out of bed and suffered a head injury. He later died. His estate sued the nursing home operator in state court, alleging negligence, violations of the state residents’ rights law, and other claims. The defense filed a petition to enforce the
arbitration agreement. The trial court found that no valid agreement existed for Bramer’s third admission.

Affirming, the Sixth Circuit noted that an agreement to arbitrate must include valid consent. Here, the court said, it would assume that the first two agreements presented to Bramer contained some contractual effect. By presenting an identical agreement to Bramer a third time, however, the home was offering him the choice of whether to again submit to arbitration, not ratify the former agreements. His refusal to sign the third agreement constituted a legal withdrawal of consent, the court said, citing the fundamental contract principle of rescission and case law finding that a contract may be cancelled by mutual consent.

The court also noted that arbitration rights may be waived on an implied basis, and that a party may not act as if there is an absence of an agreement and then subsequently seek the benefit of the bargain. Thus, the court concluded, although the defendant nursing home was not required to present Bramer with a new arbitration agreement, it did, which constituted an abandonment of any earlier agreement. Consequently, the court held that there was no valid arbitration agreement covering the parties’ current dispute.

Plaintiff counsel: AAJ member Jennifer A. Moore, Louisville, Ky.