SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI

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1 E-Filed Document Sep :42: CA Pages: 16 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI DEBRA TARVIN FOR AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF CALDWELL TARVIN APPELLANT V. CAUSE NO TS CLC OF JACKSON, D/B/A PLEASANT HILLS COMMUNITY LIVING CENTER; ANDREA HOCUTT, DIRECTOR OF NURSING; AND JOHN AND JANE DOES 1-10 APPELLEE BRIEF OF APPELLANT (Oral Argument Requested) COUNSEL FOR APPELLANT: W. Eric Stracener, Esq. (MSB# 10429) W. Andrew Neely, Esq. (MSB# ) STRACENER & NEELY PLLC 304 North Congress Street Post Office Box Jackson, Mississippi Telephone: (601) Facsimile: (601)

2 SUPREME COURT OF MISSISSIPPI COURT OF APPEALS OF THE STATE OF MISSISSIPPI DEBRA TARVIN FOR AND ON BEHALF OF THE WRONGFUL DEATH BENEFICIARIES OF CALDWELL TARVIN APPELLANT V. CAUSE NO TS CLC OF JACKSON, D/B/A PLEASANT HILLS COMMUNITY LIVING CENTER; ANDREA HOCUTT, DIRECTOR OF NURSING; AND JOHN AND JANE DOES 1-10 APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of the Supreme Court and/or the Judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Debra Tarvin Appellant 2. CLC of Jackson d/b/a Pleasant Hills Community Living Center Appellee 3. W. Eric Stracener, Esq. and W. Andrew Neely, Esq., Stracener & Neely, PLLC Attorneys for Appellant 4. John G. Wheeler, Esq. and Margaret Sams Gratz, Esq., Mitchell, McNutt & Sams, P.A. Attorneys for Appellee 5. Honorable William A. Gowan, Presiding Hinds County Circuit Court Judge /s/w. Eric Stracener W. Eric Stracener Attorney of record for Appellant ii

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES... ii TABLE OF CONTENTS... iii TABLE OF CASES, STATUTES AND AUTHORITIES... iv STATEMENT REGARDING ORAL ARGUMENT... v STATEMENT OF THE ISSUES... vi STATEMENT OF THE CASE A. COURSE OF PROCEEDINGS I. INTRODUCTION... 1 II. STATEMENT OF FACTS B. PROCEDURAL HISTORY STANDARD OF REVIEW... 5 SUMMARY OF THE ARGUMENT ARGUMENT A. NO VALID ARBITRATION AGREEMENT EXISTS CONCLUSION...9 CERTIFICATE iii

4 TABLE OF CASES, STATUTES AND AUTHORITIES CASES PAGE Hattiesburg Health and Rehab. Center LLC v. Brown, No.: 2014-CA SCT...1, 5, 7, 8, 9 Covenant Health and Rehabilitation of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss. 2007)...1, 8 Covenant Health and Rehabilitation of Picayune, L.P. v. Moulds, 14 So.3d 695 (Miss. 2009)...1, 8 Century 21 Maselle v. Smith, 965 So.2d 1031, 1036 (Miss. 2007)...3 Adams Cmty. Care Center, LLC v. Reed, 37 So. 3d, 1155, 1158, 1159 (Miss. 2010)...5, 7, 8 AUTHORITIES Miss. Code Ann (1) (Rev. 2013)... 1 Miss. Code Ann (Rev. 2013)... 6 Miss. Code Ann (d) (Rev. 2013)... 6 Miss. Code Ann (o) (Rev. 2013)... 6, 7 Miss. Code Ann (1) (Rev. 2009)... 7 iv

5 STATEMENT REGARDING ORAL ARGUMENT Appellant requests oral argument as she believes it will assist this Court in fully analyzing the issues presented. v

6 STATEMENT OF THE ISSUES 1. Whether the trial court erred by granting Appellee s Motion to Enforce Arbitration based on the application of the Mississippi Uniform Healthcare Surrogate Act when Plaintiff s decedent, Caldwell Tarvin, was never determined to be incapacitated by his primary physician, and when Mr. Tarvin himself was never a signatory to the arbitration agreement. vi

7 STATEMENT OF THE CASE A. COURSE OF PROCEEDINGS BELOW I. INTRODUCTION The trial court erred in granting the Appellee s Motion to Compel Arbitration, R.E. 005, as there is no valid and binding arbitration agreement. The trial court s decision was based entirely on its finding that the Mississippi Uniform Healthcare Decision Act applies. However, the record is devoid of any evidence that Caldwell Tarvin was determined by the primary physician to lack capacity as required for Debra Tarvin, his daughter, to bind him to the agreement. Miss. Code Ann (1) (Rev. 2013). This Court s recent decision in Hattiesburg Health and Rehab. Center LLC v. Brown makes clear that a strict construction of the Uniform Healthcare Surrogate Act must be applied. No CA SCT at 22. There is simply no declaration by anyone, much less Mr. Tarvin s primary physician, that Mr. Tarvin was incompetent. See, Brown, at 21-22; see also Covenant Health and Rehabilitation of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss. 2007) overruled on other grounds by Covenant Health and Rehab of Picayune, L.P. v. Moulds, 14 So.3d 695 (Miss. 2009). II. STATEMENT OF FACTS Caldwell Tarvin was a seventy-six (76) year old male resident of Hinds County who died on May 8, 2011, after residing in Defendant Pleasant Hills Community Living Center for approximately eighteen (18) months. During his stay at the facility, Mr. Tarvin was allowed to develop severe decubitus ulcers or bedsores, dehydration, urinary tract infections and other injuries. R In January 2011 Mr. Tarvin was hospitalized and was found to have several serious, lifethreatening skin breakdowns. R. 6. The existence of these bedsores had never previously been disclosed to Mr. Tarvin s family. Mr. Tarvin was referred to Dr. Richard Weddle, a neurologist, 1

8 for evaluation after a change in condition. R. 17, R.E Dr. Weddle did not make a diagnosis of Mr. Tarvin but rather gave the impression that Mr. Tarvin was pretty obviously demented at this time. I am not sure of the cause unless it is small vessel disease R. 48, R.E Dr. Weddle then ordered an MRI scan of Mr. Tarvin s head; it was ultimately determined that Mr. Tarvin had, in fact, suffered an acute onset stroke. R , R.E Prior to his admission to Pleasant Hills, Mr. Tarvin was never adjudicated to be incompetent; was never found to be incompetent by his primary physician; and was not under any conservatorship, power of attorney or other legal mechanism which would allow others to contract or make healthcare decisions on his behalf. Upon his admission into Pleasant Hills Nursing Center, Caldwell Tarvin s daughter, Debra Tarvin, executed an Admission Agreement which contained an arbitration provision. R , R.E Janet Terrell and Annette Tarvin also executed the subject agreement. R. 45. Caldwell Tarvin did not execute the agreement. R. 45, R.E No power of attorney, conservatorship or other such documents were attached to the admission agreement. R A section of the agreement titled Choice of Doctor requests that the resident provide information regarding an attending physician of your choice and the name Robert Smith was given as the authorized physician. R. 42, R.E Nowhere in the record does Robert Smith appear as making any determination regarding Caldwell Tarvin s capacity. R. 47. B. PROCEDURAL HISTORY On February 15, 2013, Plaintiffs filed the subject Complaint. R. 4. Thereafter, on March 29, 2013, the Defendants filed a Separate Answer and Defenses on behalf of CLC of Jackson, LLC d/b/a Pleasant Hills Community Living Center. R. 16. In the Answer, the Defendants asserted the following: 2

9 Pleasant Hills asserts that venue is proper in the First Judicial District of Hinds County, Mississippi and that this matter should be transferred to the Second Judicial District of Hinds County, Mississippi. R. 17. The Defendants did not properly raise the issue of arbitration, did not reference a specific arbitration agreement, nor did they timely move to dismiss the case and stay all proceedings as is the proper procedure to invoke an alleged arbitration agreement. R Century 21 Maselle v. Smith, 965 So.2d 1031 (Miss. 2007). Rather, the Defendants raised several affirmative defenses. R. 16. On March 29, 2013, the Defendants propounded Requests for Admission, Requests for Production of Documents, and Interrogatories on the Plaintiff. Said discovery requests were propounded in Cause No CIV, and were not geared toward the discovery of information related to the enforcement of an arbitration agreement. However, even at this juncture, no timely Motion to Dismiss and/or to Stay Proceedings and Compel Arbitration was filed by the Defendants; Defendants rather sought an agreement through counsel to dismiss the case. R. 49. Plaintiffs declined to agree to arbitration, and Defendants filed a Motion to Compel Arbitration on August 2, R. 31, R.E Defendants later requested arbitration-related discovery and same was granted by the trial court. R. 120, R.E The Plaintiff did not oppose this motion for limited discovery. Some nine (9) months later, on October 31, 2014, the Defendants supplemented their original Motion to Compel with precisely four (4) pages of additional medical records. R. 124, R.E First, the Defendants submitted the records of Eloise Harris, SLP, a speech therapist. R. 129, R.E Ms. Harris findings are irrelevant to these proceedings as she is neither a medical doctor and, certainly, was not Mr. Tarvin s primary physician as contemplated by the 3

10 Uniform Healthcare Surrogate Act. Two pages of medical records were submitted demonstrating the findings of Cassandra F. Thomas, M.D. R , R.E Dr. Thomas discharge diagnosis was as follows: Discharge diagnosis: (1) Acute mental status changes. (2) New cerebrovascular accident. (3) Hypertension, uncontrolled. (4) Hypokalemia. (5) Dementia. (6) Tobacco use. (7) History of alcohol abuse. R. 131, R.E Nowhere in Dr. Thomas discharge diagnoses was any mention made of Mr. Tarvin s capacity or lack thereof. R , R.E Further, no declaration or other affirmative statement by Dr. Thomas, or any other of Mr. Tarvin s medical providers, is contained in the record. R , R.E Dr. Thomas described in detail Mr. Tarvin s hospital course: HOSPITAL COURSE: The patient initially presented to the office generalized weakness, mental status changes, admitted to the hospital where he was found to have cerebrovascular accident. The above consults were obtained. His blood pressure was also elevated and potassium low on admission. He was started on medications. Both of these were corrected and are now within normal limits. His work-up also included a vitamin B-12 and folate level which was normal. TSH was normal. RPR non-reactive. Hemoglobin and hematocrit were within normal limits. He received physical therapy while in the hospital. He started having some choking with his meals, therefore, the need for the modified barium swallow and she has recommended a pureed diet with oneon-one with meals, honey consistent liquids only with no regular water, Jello or ice, no straws and aspiration precautions. His medications are Norvasc 5mg daily, Nicotine 21mg patch daily, HCL 10mg daily, and entenic-coated aspirin 325mg daily. He is being discharged to Pleasant Hills Nursing Home at the request of his family. Will consult PT, ST and OT. 1 The Appellee merely referenced any arbitration agreement which might apply. R

11 R , R.E [emphasis added]. There is no finding, impression, or statement made regarding Mr. Tarvin s capacity or ability to make healthcare decisions. R , R.E On November 18, 2014 the trial court entered an Order compelling arbitration. R. 138, R.E The court s Order makes no finding that Mr. Tarvin s primary physician found him to be incompetent prior to his admission to the nursing home. R. 138, R.E Rather, the court simply found as follows: R. 138, R.E The August 24, 2007 discharge summary prepared by Dr. Thomas, notes Mr. Tarvin suffered from a recent cerebrovascular accident, that he had acute mental status changes and dementia. It also notes that it was his family s desire that he be discharged to the nursing home; the arbitration agreement was signed approximately three days later. Believing the trial court to be in error, the Plaintiffs duly filed a Motion for Reconsideration on November 24, R Thereafter the trial court entered a Final Judgment and Order Denying Motion for Reconsideration on January 15, R. 148, R.E No further findings of fact or conclusions of law were contained in the trial court s Final Judgment and Order. R. 148, R.E It is from these rulings that the Plaintiffs appeal. STANDARD OF REVIEW It is well-settled that a trial court s rulings on motions to compel arbitration are reviewed de novo. Hattiesburg Health and Rehab Center, LLC v. Brown, No CA SCT at 5; citing Adams Cmty. Care Center, LLC v. Reed, 37 So.3d, 1155, 1158 (Miss. 2010). SUMMARY OF THE ARGUMENT The recent cases of Hattiesburg Health and Rehab Center, LLC v. Brown and Adams Cmty. Care Center v. Reed require reversal. The Mississippi Uniform Healthcare Surrogate Act does not apply, as Debra Tarvin did not have authority to bind Caldwell Tarvin to an arbitration 5

12 agreement, as no primary physician made any finding to rebut the presumption that Mr. Tarvin was competent. ARGUMENT A. NO VALID ARBITRATION AGREEMENT EXISTS The Appellant s entire argument, and the trial court s decision to grant the Motion to Compel Arbitration, rests on the proposition that the Mississippi Uniform Healthcare Surrogate Act applies. R. 138, R.E To that end, a review of the statutory language, and recent controlling authority make clear that the trial court s decision was in error and this case must be reversed. A look at the definitions section of the Mississippi Uniform Healthcare Surrogate Act is instructive. See Miss. Code Ann The definition of capacity is as follows: (d) Capacity means an individual s ability to understand the significant benefits, risks, and alternatives to proposed healthcare and to make and communicate a healthcare decision. Miss. Code Ann (d). Further, the statute defines a primary physician as follows: (o) primary physician means a physician designated by an individual or the individual s agent, guardian or surrogate, to have primary responsibility for the individual s healthcare, or in the absence of a designation or if the designated physician reasonably available, a physician who undertakes the responsibility. Miss. Code. Ann (o) [emphasis added]. The record is devoid of any finding regarding Caldwell Tarvin s capacity. While it is readily admitted that there are impressions regarding Mr. Tarvin s mental status contained in the few pages of medical records submitted by the Appellee, what is clear is that Mr. Tarvin suffered an acute change in mental status and was ultimately diagnosed to have had a stroke. R , R.E There is no declaration or other statement from any of his providers, much less a primary physician regarding Mr. Tarvin s ability to appreciate the significant benefits, risks, 6

13 and alternatives, to proposed healthcare; further, there is no language which addresses Mr. Tarvin s ability to handle his affairs or that he should be under a power of attorney or conservatorship. R , R.E ; See also R , R.E The presumption that Caldwell Tarvin was competent is not overcome by the evidence contained in the record. Similarly, the record is bereft of any evidence that Mr. Tarvin s primary physician has made any finding herein. R , R.E There is nothing in the record to indicate that Mr. Tarvin had designated Dr. Cassandra Thomas to have primary responsibility for his healthcare. Miss. Code Ann (o). There is similarly no evidence that an agent, guardian or surrogate had designated any of Mr. Tarvin s healthcare providers as a primary physician, other than Robert Smith. R. 47, R.E It is respectfully submitted that this complete lack of record evidence demonstrates that the Mississippi Uniform Healthcare Surrogate Act is not triggered and, accordingly, Debra Tarvin was not authorized as a surrogate or otherwise to bind Caldwell Tarvin to an arbitration agreement. The recent case of Hattiesburg Health Rehab Center, LLC v. Brown, No CA SCT demonstrates the Mississippi Supreme Court s clear directive on this precise issue. 2 In that case, the Mississippi Supreme Court noted that, in analyzing whether the Mississippi Uniform Healthcare Surrogate Act has been triggered This Court has since returned to a strict interpretation of the surrogate statutes and cited Adams Cmty. Center, LLC v. Reed as follows: Our Legislature has very specifically provided the manner in which the presumption that an individual has capacity to make a healthcare decision may be rebutted: by a primary physician determining lack of capacity. Miss. Code Ann (1) (Rev. 2009). this Court must follow the plain and unequivocal language of the statute and require that, in order for one to act as a health-care surrogate, there must first be a 2 While the Plaintiffs cited the Adams case to the trial court, the trial court did not have the benefit of the Brown decision at the time of its ruling 7

14 determination of a lack of capacity by a patient s primary physician. Because there is no evidence that a primary physician found Annie Reed to be incapacitated, we hold that neither James nor Larry Wesley had authority to act as a health-care surrogate. Brown, 2014-CA SCT at para. 22; quoting Adams Cmty. Care, LLC, 37 So.3d at 1159 [emphasis added]. In Brown, the Supreme Court also rejected the nursing home s attempt to show substantial compliance and its reliance on Covenant Health and Rehabilitation of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss. 2007) overruled on other grounds by Covenant Health and Rehabilitation of Picayune, L.P. v. Estate of Moulds, 14 So.3d 695 (Miss. 2009). The Covenant Health case, however, offers no support for the Defendant s position as in that case, the plaintiffs themselves acknowledged that the resident s admitting physician did make a finding that the resident lacked mental capacity. Covenant Health, 949 So.2d at No such representation has been made in this case. The Appellees, in fact, did not make this argument, and the trial court made no such finding. Interestingly, the Brown case, in which the arbitration agreement was not enforced, involved a situation where the family member of the deceased resident did in fact maintain that the resident was incapacitated when he was admitted to the defendant nursing home. Brown at 25. However, even this fact did not persuade the Mississippi Supreme Court to enforce the arbitration agreement pursuant to the Mississippi Uniform Healthcare Surrogate Act. The Mississippi Supreme Court ruled that statute was not strictly complied with, and the statutory prerequisites were not met. Id. In the case at bar, Caldwell Tarvin s family members make no such admission that he was incapacitated at the time of his admission to the Defendant nursing home; the fact that the family wished to have him placed in a nursing home where he could obtain appropriate treatment does not constitute an opinion or admission (albeit a layman s opinion) that Mr. Tarvin was incapacitated. As such, the facts herein are arguably even clearer 8

15 than those in the Brown case. The Mississippi Uniform Healthcare Surrogate Act does not apply, and the trial court s ruling must be reversed. CONCLUSION The trial court s ruling is in contravention of controlling legal authority and the record is devoid of evidence to trigger the Mississippi Uniform Healthcare Surrogate Act; the presumption of Mr. Tarvin s competence cannot be overcome. This Court must reverse and remand. Respectfully submitted, this, the 28th day of September, COUNSEL FOR APPELLANT: W. Eric Stracener (MS Bar No: 10429) W. Andrew Neely (MS Bar No: ) Stracener & Neely, PLLC 304 North Congress Street (39201) Galloway House, Second Floor Post Office Box Jackson, Mississippi Telephone: (601) Attorneys for Appellant TOMEKA HANDY - APPELLANT By: /s/w. Eric Stracener W. Eric Stracener (MSB # 10429) W. Andrew Neely (MSB # ) 9

16 CERTIFICATE OF SERVICE I, W. Eric Stracener, attorney for Appellant Debra Tarvin, certify that I have this day served a copy of the above and foregoing document to the following via filing with the MEC electronic filing system: Muriel B. Ellis, Clerk Mississippi Supreme Court 450 High Street Jackson, Mississippi John G. Wheeler, Esq. Margaret Sams Gratz, Esq. MITCHELL, MCNUTT & SAMS, P.A. 105 South Front Street Post Office Box 7120 Tupelo, Mississippi Further, I hereby certify that I have mailed by United States Mail, postage prepaid, the above and foregoing document to the following: Hon. William A. Gowan HINDS COUNTY CIRCUIT JUDGE First Judicial District Post Office Box Jackson, Mississippi This, the 28th day of September, /s/w. Eric Stracener W. Eric Stracener 10