Arbitration: Case Did Not Involve Medical Malpractice
An elderly lady’s neck was broken when she fell forward out of her wheelchair as she was being pushed by a certified nursing assistant employed by the nursing home. She died five days later.
The accident was apparently caused by the front wheels getting hung up on the bed’s electrical power cord lying across the floor of her room.
The nursing home petitioned the court to refer the family’s lawsuit into mandatory arbitration pursuant to the arbitration agreement signed when the resident entered the nursing home. The family wanted their day in court for a jury trial.
The Court of Appeals of Arizona ruled the case did not belong in arbitration.
Arbitration is appropriate only if both sides knowingly and freely agree to arbitration. The arbitration agreement sets out the parameters of the parties’ agreement to go to arbitration instead of court.
The Court looked carefully at the wording of the arbitration agreement.
The arbitration agreement’s wording said it applied to claims for medical malpractice. It went on to define medical malpractice as an error or omission in the course of professional medical treatment.
Non-professional staff pushing a resident in a wheelchair is not professional medical treatment. Bernardo v. Nursing Home, 2020 WL 428748 (Ariz. App., January 28, 2020).
The arbitration agreement requires arbitration of any and all legal claims for medical malpractice.
A mistake by a non- licensed staff member pushing a wheelchair is not medical malpractice.
The arbitration agreement does not apply to this case.
COURT OF APPEALS OF ARIZONA
January 28, 2020
“The accident was apparently caused by the front wheels getting hung up on the bed’s electrical power cord lying across the floor of her room. ” Patient safety should always be the top priority in care ~ This demonstrates how a devastating injury can occur from something that should have been easily and quickly taken care of PRIOR to moving this patient. This family deserves their day in court.