Physicians seeking to enter into agreements with their patients to arbitrate medical professional liability claims should consult with their legal advisors as to how to obtain valid patient consent, particularly when the patient is incompetent.
The Pennsylvania courts continue to set a high standard for how consent to arbitrate a medical professional liability claim must be obtained when the patient is incompetent and cannot personally sign the agreement.
In 2013, the Superior Court refused the request of a health care facility to enforce an arbitration agreement signed by a mother on behalf of her adult daughter while the daughter was comatose. The mother did not have a financial power of attorney to act on behalf of her daughter and was not her legal guardian. The court found that there was insufficient evidence that the mother was the daughter’s authorized agent or apparent agent (due to the daughter’s word or conduct that would have caused the facility to reasonably believe that her mother was her authorized agent).
In August 2015, for similar reasons, the Superior Court refused to enforce an arbitration agreement signed by the spouse of a patient suffering from dementia when the patient was being admitted to a nursing home.
The following issues involving both cases are noteworthy:
The family member signing the arbitration agreement was authorized, as a health care representative for the patient, to consent to medical care for the patient at the facility. However, this was insufficient for purposes of an agreement to arbitrate.
It was apparent that the court was uncomfortable with other aspects of the facility’s consent process. For example, in the 2015 case, the spouse was asked to sign as a condition of the patient’s admission when she arrived with the ambulance that brought the patient to the facility, suggesting that the consent was not voluntarily obtained.
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