Nursing Home Arbitration Papers and Your Family's Case: What Giancola v. Azem Means

Published June 12, 2018 · Ohio Court Decisions

When a parent or spouse moves into a nursing home, families are handed a thick stack of admission papers, often in a hurry and at a stressful moment. Somewhere in that stack there may be an arbitration agreement: a promise that disputes will be decided by a private arbitrator instead of a judge and jury.

Few families think about that page again until something goes wrong. A decision from the Supreme Court of Ohio on May 3, 2018, Giancola v. Azem, 2018-Ohio-1694, shows how much can turn on who signed it.

What happened

According to the court's opinion, Nicholas Giancola was admitted to Walton Manor Health Care Center in October 2011 with multiple serious medical conditions. An admission agreement and an arbitration agreement were signed a few days later. He stayed until December 15, 2011, and died on December 31, 2011.

The administrator of his estate sued the facility's operators, bringing both a survival claim for the injuries he suffered before death and a wrongful death claim for the family's losses. The facility asked the court to stay the lawsuit and send the case to arbitration.

The estate argued that Mr. Giancola had not signed the arbitration agreement and that the wrongful death claim could not be forced into arbitration in any event. A facility employee testified that his mother had signed it. The trial court found that the mother had signed it with apparent authority to bind her son, and it ordered the survival claim to arbitration.

The appeals

On the first appeal, the facility changed course and argued that Mr. Giancola himself, not his mother, had signed the agreement, attaching documents that were not in the trial court record. The Eighth District Court of Appeals refused to affirm on a basis the facility itself said was factually wrong, reversed, and sent the case back.

On remand, the facility renewed its request for arbitration, now with the new documents and a handwriting analysis. The trial court found that Mr. Giancola had signed the agreement and was bound by it. On a second appeal, the Eighth District held that the trial court had violated the law-of-the-case doctrine, a rule that prevents trial courts from revisiting legal questions an appeals court has already decided in the same case.

What the Supreme Court decided

The Supreme Court of Ohio reversed. It held that the law-of-the-case doctrine applies only to legal questions the reviewing court actually resolved. The first appeal decided only that the mother's apparent authority could not support arbitration. It did not decide who signed the agreement, and it did not forbid the trial court from hearing new evidence on that question. Remanded for further proceedings, the parties returned to where they stood before the error, and nothing prevented the facility from arguing that Mr. Giancola signed.

The court sent the case back to the court of appeals to decide the estate's other arguments, which the appeals court had not reached. Chief Justice O'Connor, joined by Justice Fischer, dissented and would have dismissed the appeal as improvidently accepted.

What this means for families

This decision is about procedure, and it does not decide whether the arbitration agreement is valid. But it carries real lessons.

Who signed matters, and the facility may keep trying to prove it. The case shows that a nursing home can return to court with new evidence on whether a resident signed an arbitration agreement. Families should gather everything about the admission early: who was present, who signed what, whether anyone explained the papers, and whether the resident was able to understand them.

The wrongful death claim is treated differently. In Peters v. Columbus Steel Castings Co., 115 Ohio St.3d 134 (2007), the Supreme Court of Ohio held that only those who sign an arbitration agreement are bound by it, and that a person cannot bind his or her beneficiaries to arbitrate their wrongful death claims, because those claims belong to the beneficiaries. The court also held that the person's own agreement can apply to the survival action, which carries forward claims for his or her own injuries under R.C. 2305.21. That is why, in cases like this one, the fight over arbitration usually centers on the survival claim, while the family's wrongful death claim can proceed in court unless the beneficiaries themselves agreed otherwise.

Two cases can end up in two places. When a survival claim goes to arbitration and the wrongful death claim stays in court, a family may be dealing with two proceedings about the same death. That can add time and expense, and it is one more reason to have a lawyer who knows your case.

Be careful what you sign now, too. Families are sometimes asked to sign new papers after a death, including authorizations and releases. Our post on recorded statements and early paperwork explains why it is wise to get advice first.

Building the case

Nursing home cases turn on records: care plans, charting, staffing, incident reports, and the admission file itself, including any arbitration agreement. Our post on Howard v. HCR ManorCare shows how corporate decisions about staffing can be part of the case, and our page on nursing home deaths explains what families should look for.

The wrongful death claim is brought by the personal representative of the estate for the benefit of the surviving spouse, children, parents, and other next of kin, under R.C. 2125.02(A)(1), and it generally must be filed within two years after the death under R.C. 2125.02(D)(1). You can read more about how Ohio wrongful death law works.