Blankfeld v. Richmond Health Care, Inc., 2005 WL 1226070 (Fla. 4th DCA May 25, 2005) (Trial Court Reversed) In what will surely be a disturbing decision to all Florida nursing home administrators, the Fourth DCA just made it a lot tougher to avoid trials in nursing home cases. First, the Fourth DCA held that an arbitration clause administered by the American Health Lawyers Association “substantially limits the remedies created by [F.S. § 2004->Ch0400->Section%20023#0400.023″>400.023(2)] and is [thus] void as contrary to public policy.” Second, the Fourth DCA held that even if the AHLA’s arbitration clause were enforceable, which it’s not, a person acting under the health care proxy authority granted by F.S. § 2004->Ch0765->Section%20401#0765.401″>765.401 can only make “health care decisions,” and agreeing to arbitration is not a health care decision. If a nursing home wants to bind an incapacitated patient to a valid arbitration clause, it will have to seek the appointment of a temporary guardian pursuant to F.S. § 2004->Ch0744->Section%203031#0744.3031″>744.3031(1) to sign the agreement. As the concurring opinion put it . . .
If a nursing home wants to deal with someone competent to make such decisions, it has the right to seek the appointment of a guardian. For only a court appointed guardian could waive or compromise property rights, such as civil remedies in negligence or the right to trial by jury.