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Howell v. NHC Healthcare-Fort Sanders2/25/2003
Defendants' Motion to Compel Mediation and Arbitration pursuant to Tenn. Code Ann. ยง 29-5-303, was overruled by the Trial Court. We granted an interlocutory appeal, pursuant to Rule 9, Tenn. R. App. P.
This action was filed by the executor of the Estate of Orangie Howell, who died while residing in the NHC -Ft. Sanders Nursing Home in Knoxville. The Complaint charges the nursing home with abuse and neglect, and infliction of physical suffering and mental anguish upon the deceased, inter alia.
The defendants insist the admitting agreement signed by the deceased's husband is enforceable, and requires that these claims are subject to mediation and arbitration, because the agreement so provides.
The Trial Court conducted an evidentiary hearing on the Motion, and Paula Larkins, who presented the admitting contract to Howell, testified that the contract signed by Howell was the only one used by the nursing home at the time, and that a patient or their legal representative was required to sign the contract before being admitted to the facility. She testified that she remembered meeting with Howell and one or both of his daughters, and that she did not read the contract verbatim, but paraphrased it to Howell. She did not ask Howell to read the agreement, and she did not ask him if he could read.
Larkins testified that she explained the dispute resolution procedure to Howell, and that she explained that the arbitration was binding. She did testify that she did not explain to Howell that by signing the contract, he was giving up his wife's right to a jury trial. She further testified that Ms. Howell was too sick to return home from the hospital, and Mr. Howell had to sign the contract in order to have Ms. Howell admitted to the nursing home. Howell's daughter, Constance Davis testified that she accompanied her father to the nursing home, that her father could not read or write, but that it was his decision to make and she and her sister just accompanied him for support and that she understood that the papers had to be signed before her mother could be admitted to the nursing home.
Howell's other daughter testified that she also accompanied her father to the nursing home, and that the nursing home representative went through the paperwork and explained each page to her father. She testified that she did not see the papers and that she did not remember hearing the words "arbitration", "mediation", or "dispute resolution".
Howell testified that he was employed as a roofer for many years, and that he was now retired due to stomach cancer, that he was unable to read or write, but that he could sign his name. He testified that lady at the nursing home "pushed" the documents in front of him and asked him to sign them, and that she did not explain them. He testified that his daughters were there with him, but that they did not look at the document. He testified that he never asked what was in the document, he just knew that he was supposed to be signing a contract to get his wife in the nursing home, and he did not remember the lady at the nursing home telling him to come to her if he had any problems or concerns, and he did not remember anyone using the term "arbitration".
Howell testified he had never heard of arbitration, did not know what it was, and that it was not explained to him. He testified that the nursing home's representative never told him he was waiving his wife's right to a jury trial.
The Trial Court found that Ms. Larkins tried to explain the contract to Mr. Howell, but that she testified that she never explained to him that by signing the contract he was giving up his right or his wife's estate's rig
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