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Court Upholds Elder Abuse End Run Around Arbitration Agreement

By Robyn Hagan Cain on April 30, 2012 | Last updated on March 21, 2019

A state appellate court released a decision Monday allowing a plaintiff to proceed with a negligent infliction of emotional distress claim that is tied to an arbitrable elder abuse claim.

If the California Supreme Court doesn't reverse this decision, the case could provide inspiration to other litigants who do not want to be limited to arbitration in their claims against nursing homes.

Rebecca Bush sued Sierra Health Care Center, a skilled nursing facility, claiming that the facility engaged in elder abuse based on their alleged neglect in providing her care and treatment. Bush, by and through her daughter and guardian ad litem, Charmaine Jennings, filed a complaint containing causes of action for elder abuse, fraud, and violations of the Patients Bill of Rights. In the same complaint, Jennings sued the same defendants for negligent infliction of emotional distress based on her alleged observation of the harm they caused Bush through their neglect.

The defendants, facility operators Horizon West and Golden Legacy, moved to compel arbitration in the case under the patient arbitration agreement between Bush and Sierra that Jennings had signed in May 2007 as Bush's legal representative. The trial court, exercising its discretion under Code of Civil Procedure 1281.2(c), denied their motions because of the possibility of conflicting rulings between Bush's claim for elder abuse, which was subject to arbitration, and Jennings' claim for negligent infliction of emotional distress, which was not.

The appellate court upheld that ruling, finding no error or abuse of discretion in the trial court's decision.

The appellate court concluded that Code of Civil Procedure 1281.2(c) was not preempted here by the Federal Arbitration Act, and rejected the defendants' argument that the parties agreed section 1281.2(c) would not apply.

The court further held that Jennings was not bound by the arbitration agreement, either based on the California Supreme Court's recent decision in Ruiz v. Podolsky or on the doctrine of equitable estoppel. Finally, the court declined to overturn the trial court ruling based on "public policy."

Sadly, elder abuse is a growing problem. California plaintiffs who want to sue assisted care facilities for elder abuse may be able to circumvent an arbitration agreement by tacking a valid section 1281.2(c) claim onto an elder abuse claim.

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