HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, July 31, 2013

Explaining the Failure of Advance Care Planning Consultation under ACA

The most recent issue of the Hastings Center Report features an illuminating discussion of the failure to include reimbursements for discussion of end of life care options in the Affordable Care Act.  As is well known, the “Advance Care Planning Consultation” (APCP) proposal met a fiery rhetorical end, consumed by charges of the legitimation of “death panels.”  The Kaiser Family Foundation reported last spring that a significant percentage of the public continue to believe that ACA provides for death panels, and that this contributes to the unpopularity of ACA.  

In “Avoiding a ‘Death Panel’ Redux,” Nicole M. Piemonte and Laura Hermer offer an illuminating explanation for the advance care planning fiasco.  As the APCP provision was introduced, it contained language mandating certain contents for end of life conversations:  "Mandatory content included an explanation of advance care planning, advance care directives, living wills, and durable powers of attorney; an explanation of the role and responsibilities of a health care proxy; provision of a list of national and state-specific resources to assist in advance care planning; an explanation of the continuum of end of life resources available, including palliative and hospice care; and an explanation of orders regarding life-sustaining treatment, including why such orders are beneficial to the individual and the family."  Piemonte and Hermer suggest that this content mandate detracted from the aim of encouraging genuine dialogue between physicians and their patients and instead suggested a problematic checklist approach. An additional problem was the proposal to include adherence to advance care directives as a quality measure.  Taken together, Piemonte and Hermer argue, these aspects of the APCP fed perceptions that the government was prescribing what physicians had to do with respect to end of life decisionmaking--even, perhaps, with respect to cost controls. The form in which APCP was originally proposed thus may have played a role in its demise.

Piemonte and Harmer praise later proposals (none as yet enacted) for education and encouragement of open-ended communication between physicians and patients.  Unfortunately, it is difficult to visualize what how different these proposals might actually be in practice; one, for example, takes content mandate out of the statute but into regulation.  Nonetheless, the article is a useful reminder of the need for attention to good physician-patient relationships as ACA unfolds.  



July 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 30, 2013

New York Appellate Court Rules NYC's Large Size Soda Ban Violates State Constitution

Hat tip to Professor Ruthann Robson from over at Constitutional Law Prof Blog for this story:

The super-size soda ban, a program advocated by NYC Mayor Michael Bloomberg, is not constitutional according to the unanimous opinion from a state appellate court in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene. 

The court affirmed a state trial court's decision that the NYC regulation prohibiting sugary  drinks in restaurants, movie theaters and arenas that exceed 16 ounces was an unconstitutional exercise of power by a city agency, as well as arbitrary and capricious.  A good discussion of the trial court's decision is here.

Essentially, the issue is whether NYC Health Code §81.53, known as the "portion cap rule" is within the power of the Department of Health.  The short answer by the judicial branch: no. 


In today's opinion, the court held that the NYC

Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion Cap Rule to curtail the consumption of soda drinks. It therefore violated  the state principle of separation of powers. In light of the above, we  need not reach petitioners' argument that the subject regulation was  arbitrary and capricious. Before concluding, we must emphasize that nothing in this  decision is intended to circumscribe DOHMH's legitimate powers. Nor is  this decision intended to express an opinion on the wisdom of the soda  consumption restrictions, provided that they are enacted by the  government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the  protection of the public health and have great latitude and discretion  in performing their duty to safeguard the public health.

Doctrinally, the decision is most pertinent to New York state constitutional law and administrative law scholars and practitioners.  It has broader interest, however, to those interested in the powers of governments to enact regulations that (arguably) promote health.

[image via]


July 30, 2013 | Permalink | Comments (0) | TrackBack (0)

The ACA and Job Mobility--An Ironic Twist on "Job Lock".

The New York Times reported yesterday that many Congressional staffers are thinking about leaving their jobs because the ACA requires them (and members of Congress) to purchase their health insurance on state exchanges, and there is no mechanism in the law for the federal government to continue to pay its share of the premiums for the coverage, as it does now under the Federal Employees Health Benefits Program.  (Apparently, members of Congress are not thinking about leaving their jobs because of this, you can decide for yourself whether that is fortunate or unfortunate.)  This gap in the law was flagged by the Congressional Research Service almost immediately after the ACA was signed into law by President Obama, but nobody has come up with a solution to date.  The most the administration is saying about this right now is that they are "working on a regulation."

This situation presents an ironic twist on the often-voiced fear amongst critics of the ACA that the existence of the exchanges and the penalties for employers who do not offer adequate health insurance coverage to employees will encourage employers to drop insurance coverage as a job benefit.  Here, the employer wants to continue to cover the employees, but is prevented from doing so by a glitch in the law.  It also presents an ironic twist on the often-voiced praise amongst supporters of the ACA that the existence of the exchanges and the subsidies for purchasing individual insurance will allow employees who want to leave their jobs for greener pastures, but could not do so for fear of losing their insurance, to finally leave their unsatisfactory jobs.  Here, we have people who want to keep their jobs, but say they will be forced to leave because their employer cannot provide them with insurance.   

These problems can probably be fixed with a simple administrative policy, and the people affected have the political clout to see that it is done.  If only that was the case for most other folks affected by the unintended consequences of legislation.


July 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 29, 2013

Futility on the Boarder



This month's Hasting Center Report contains a case study written by me and by Dr. Craig Klugman considering both the practice of "deporting" indigent patients who lack legal immigration status and the ability of a medical center to withdraw life sustaining treatment against a family's wishes.


The article considers a scenario occuring in Texas which, of course, has a highly structured mechanism to refuse to follow an advanced directive if it means providing care which the hospital believes not productive.  However, the problem of how to assert the legal right not to have a DNR is one of growing in importance.


For example, organizations like the Texas Alliance for Life tried but failed this last legislative session to vote in laws that would bar physicans from writing DNR orders against a patient or her surrogate's objection.

July 29, 2013 in Bioethics, End-of-Life Care, Health Law | Permalink | Comments (0) | TrackBack (0)

Saturday, July 27, 2013

Published This Week

Thursday, July 25, 2013

HHS Disciplines Surgeon for Disability Discrimination for Refusal to Treat HIV+ Patient

The Office for Civil Rights (OCR) at the Department of Health and Human Services has recently taken a much more aggressive enforcement stance.  This has been evident in its enforcement of HIPAA.  It is now also evident in enforcement of the Rehabilitation Act against physicians who refuse to treat patients with disabilities.  In announcing its action, OCR stated firmly that it is part of a coordinated strategy to improve access to treatment for patients who are HIV positive.

The physician in question is a California neurosurgeon who refused to operate on a patient with HIV.  The facts of the case were not contested.  The physician was found to have violated the Rehabilitation Act by refusing to treat the patient based on his disability, HIV.  The ALJ decision can be found here.  The physician has been barred from future Medicaid funding until he can demonstrate compliance with the Rehabilitation Act. 

These efforts by OCR are to be welcomed.


July 25, 2013 | Permalink | Comments (0) | TrackBack (0)

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July 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 23, 2013

Income Maintenance Among Chinese Doctors

Journalists have repeatedly made the case that physicians should earn less.  The question then becomes: how will doctors react once their pay is cut?  China provides some interesting examples

Bribery is the lubricant that helps keep China's public hospitals running, and the health system would struggle to function without illegal payments to poorly paid doctors and administrators, say medical practitioners and industry experts.

The corruption stems largely from doctors' low base salaries, which are set in line with a pay scale for government workers. Hospitals can pay bonuses but, given public hospitals are strapped for cash, compensation is usually low, say doctors and industry experts.

Low salaries have also spawned a system of under-the-table payments from patients. The payments are known as "hongbao" -- a reference to the cash-filled red envelopes given as presents during Lunar New Year festivities -- and cover various services from jumping the queue for appointments to extra surgical fees.

I predict we'll soon be seeing a concierge medicine firm called "Red Envelope" springing up in the USA.  More seriously: have America's health care cost cutters seriously considered the potential unintended consequences of their crusade?  We live in a world where Wall Street compensation has skewed expectations generally.  "Only 28 percent of those worth $1 million to $5 million said they were wealthy," according to a recent survey.  I don't predict many specialists are going to miss out on a chance to join the $5 million+ crowd.  Health care cost cutters may simply be encouraging them to shift their energies away from ordinary Medicare and Medicaid patients, and toward the worried wealthy.


July 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Pioneer Accountable Care Organizations and Downside Risk--It's Deja Vu All Over Again

Numerous outlets, including the Washington Post, have reported that nearly one-third of the 32 Pioneer ACO's under the Affordable Care Act have left the program.  Almost half of th program participants  have failed to produce any cost-savings.  Most of those that have left have switched to the Medicare Shared Savings Program, which does not carry the down-side financial risk that the Pioneer ACO program carries.  One of the major reasons for leaving the program cited by those dropping out is that physician groups aren't accustomed to dealing with financial risk of this nature.

In the late 1990s, I practiced health care law in Seattle, Washington.  Among the folks I represented were physician-led organizations who had contracted with commercial insurers to accept downside financial risk for the cost of the care they rendered.  Invariably, when the accounting at the end of the contract term was done, the physician-led organization was told that it had incurred a loss, and owed money back to the insurers.  This tended to result in the four stages of litigation:  Disbelief, denial, blame, and filing a lawsuit, followed by the four stages of settlement:  Discovery, failed negotiation, mediation, and payment of substantial attorneys' fees. Ultimately, most physician-led organizations stopped accepting contracts with down-side risk, and insurers came up with different methods of controlling costs and ensuring quality of care, with varying degrees of success.  Clearly, there is more to facilitating the delivery of cost-effective, good-quality care, than merely putting all of the financial risk of the care on the providers.

When the Pioneer ACOs were first proposed, I wondered why anybody thought that the outcome of this experiment would be different than the mostly failed full-risk contracts that had been the rage in the late 1990's.  While the early ACO numbers indicate that some progress has been made (2/3 of the providers are remaining in the program, and almost 60% have produced some cost-savings), this early outcomes data should give us a reason to re-examine our assumptions about what it takes to change the way we deliver health care in the United States. Clearly, it's not all about financial incentives.


July 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 22, 2013

Published Last Week

Saturday, July 20, 2013

Artificial Organ Allocation & Financing

Organ allocation always involves contestable values.  New technologies of regenerative medicine will raise similar concerns. Slate's Michael Bennett offers the following, interesting set of dilemmas at the intersection of cutting edge health care and finance: 

Our society at large resembles . . . the arrangement of classes defining the experience of contemporary air travel. Will you be able to afford an economy class liver? Perhaps a business class model? Will organ markets reproduce the qualitative differences we’ve come to accept with commercial air classifications? Should organ performance track organ price? . . . If you’re underwater on your liver mortgage, it’s safe to assume you’ll be hard-pressed to walk away.

As Deven Desai has argued, in a world of person-machine merger, "Simply saying you signed this contract, and we can do what we like is an error."  Neither organs nor their financing should be "subprime" in the world Bennett describes.


July 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 18, 2013

What Is the Economic Value of a Law Degree -- $1 Million?

One MillionMichael Simkovic(Seton Hall) & Frank McIntyre(Rutgers Business School), The Economic Value of a Law Degree (PowerPoint):

Legal academics and journalists have marshaled statistics purporting to show that enrolling in law school is irrational. We investigate the economic value of a law degree and find the opposite: given current tuition levels, the median and even 25th percentile annual earnings premiums justify enrollment. For most law school graduates, the net present value of a law degree typically exceeds its cost by hundreds of thousands of dollars.

We improve upon previous studies by tracking lifetime earnings of a large sample of law degree holders. Previous studies focused on starting salaries, generic professional degree holders, or the subset of law degree holders who practice law. We also include unemployment and disability risk rather than assume continuous full time employment.

After controlling for observable ability sorting, we find that a law degree is associated with a 60 percent median increase in monthly earnings and 50 percent increase in median hourly wages. The mean annual earnings premium of a law degree is approximately $53,300 in 2012 dollars. The law degree earnings premium is cyclical and recent years are within historic norms.

We estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000.

Hat Tip to my friend Paul Caron over at TaxProf Blog.


July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

Peggy Battin and Brooke Hopkins.

Many readers of this blog may know well my dear friends and colleagues, Peggy Battin and Brooke Hopkins.  Over the past nearly-five years, they have dealt with Brooke's biking accident which left him essentially unable to move below his shoulders.  This Sunday's New York Times magazine will feature a story by Robin Marantz Henig about Peggy and Brooke: how they have thought about dying, autonomy, and living with disability. They are both truly remarkable, and the story is worth reading, again and again, for this alone--as well as for the bioethics thinking it reflects.

A subtheme of their lives is home care.  Some of these issues that they and others face are financial--our failure to pay for long term care through traditional insurance, the incentives that favor institutioinalization over living at home, the characterization of expenses such as modifying a shower as not medical, and the sheer expense of equipment such as wheelchairs.  But some are regulatory:  what type of wheelchair will be covered, what kinds of licensing requirements apply to home aides, and perhaps most troubling what activities can result in decisions to terminate the home health services that are available.   Too often, we insist that people must only use devices such as wheelchairs within the home, or that people must only stay within the home except for medical appointments, in order to continue to qualify for home health services.

I fully recognize that all of these issues are contested ones.  However, I hope that those reading the story will appreciate the amazing lives that Brooke and Peggy live and the importance of Brooke's being able to live at home for them both, as well as their enormous skill in negotiating the troubling realities of home care today.



July 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 16, 2013

Health Care Wonk Summer Reading List

Last week, I mentioned that I had just finished reading Prof. Andrew Koppelman's book "The Tough-Luck Constitution," and said that it was a little outside of my usual summer reading lists.  Then I thought about it, and realized that despite my best efforts to avoid health-care-related summer reading in favor of lighter fare, every summer I wind up reading at least one or two health-related books that don't involve bodice-ripping and swooning, but are not quite as heavy as a casebook or treatise.  So here are a few of the books that I have read over the past several years that I think belong on any health law wonk's summer reading list.  They also make great supplements for health law classes:

The Truth About the Drug Companies - Dr. Marcia Angell

The Great Influenza - John Barry

How We Do Harm - Dr. Otis Brawley

The Spirit Catches You and You Fall Down - Anne Fadiman

Flu - Gina Kolata

Unaccountable - Dr. Marty Makary

Medicine & Culture - Lynn Payer

The Healing of America - T.R. Reid

A Taste of My Own Medicine - Dr. Edward E. Rosenbaum

Hospital - Julie Salomon

God's Hotel - Dr. Victoria Sweet

I have avoided some very worthy, but more academic reads, such as Paul Starr's seminal "The Social Transformation of American Medicine," but of course, if you can concentrate while sipping that Corona at the beach or on your boat, go for it.  And no, I get no kickbacks, incentives, or pens with names on them from any of these authors in exchange for my listing.





July 16, 2013 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 14, 2013

A NIMBY Loss for Substance Abuse Treatment in Detroit

Substance abuse treatment is an important health care need. The Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Rehabilitation Act (for entities receiving federal funding), all protect people recovering from substance abuse against discrimination based on disability. Yet it remains difficult for treatment facilities to find appropriate locations in which to offer their services. Neighborhoods fear reduced property values, risks of violence, and other community disturbances and often voice these fears loudly in zoning board hearings. Elected public officials find these protests difficult to ignore. Although some NIMBY concerns are well founded, others are rooted in stereotypes or unfounded beliefs about the nature of substance abuse or the services provided by treatment facilities. Oxford Houses, a nationwide program of treatment facilities, has litigated recent NIMBY cases in a number of jurisdictions, with some success. (e.g., Oxford House, Inc. v. City of Baton Rouge, 2013 U.S. Dist. LEXIS 38002 (M.D. La. March 18)).

Nonetheless, it remains difficult for many facilities to obtain success in court when they are denied permits at the local level. A recent decision of the federal district court involving a facility in Detroit is illustrative. Get Back Up v. City of Detroit, 2013 U.S. Dist. LEXIS 91816 (E.D. Mich. July 1), involved a treatment program that had purchased a school located in an area zoned as a general business district. This zoning classification also permits some residential uses “by right” and some “conditional” uses. “By right” uses include hospitals and nursing homes; “conditional uses include fraternity houses, multiple family dwellings, rooming houses, pre-release adjustment centers, and substance-abuse service facilities. The court granted summary judgment to the City on claims that the ordinance discriminated on its face, that it differentially impacted people with disabilities, and that the City had failed to make reasonable accommodations. The court’s view was that this did not discriminate on its face merely by singling out treatment facilities; instead, it drew neutral lines among materially different types of institutions, treating substance abuse facilities like rooming houses and unlike nursing homes or hospitals. The physical infirmity of nursing home residents, in the judgment of the court, made a material difference between these institutions and substance abuse treatment facilities.

Most disturbing about the court’s decision is that it credits the City’s claims that residents from the facility had harassed people in a neighboring residential area and were responsible for increases in robberies in the area, without subjecting this evidence to the assessment of credibility it would have received in the case had gone to trial. If this decision stands, Get Back Up will presumably need to find new facilities in which to operate, losing its investment in the school that it had purchased.


July 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Mandela, End-of-Life Decisions and Family Disagreements

As Nelson Mandela's life may be nearing its end, his family may face difficult decisions about the use or withdrawal of artificial ventilation and other life-sustaining treatments. The New York Times reported on Friday how uncertainties in South African end-of-life law and political considerations may complicate the decision making process.

Unfortunately, as we've seen over and over in the United States, a factor that might make things especially difficult is the potential for disagreements among Mandela's family members. Many of the most important--and troubling--cases in the United States came to court when family members staked out different positions on a patient's end-of-life care. In the Schiavo case, for example, Terri Schiavo's husband believed she would not want to receive artificial nutrition and hydration while her parents believed she would.

According to the Times, Mandela's family "has shown itself to be fractious about decisions regarding inheritance, his eventual burial location and his legacy." Unfortunately, even when legislators have enacted good end-of-life statutes, family disagreements can preclude a dignified process for making life-sustaining treatment decisions for incapacitated patients. 


July 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Saturday, July 13, 2013

Announcement: Health Law Clinic Faculty Position at University of Pittsburgh School of Law

The University of Pittsburgh School of Law invites applications for a full-time faculty position at the rank of Assistant Clinical Professor or Associate Clinical Professor to teach in and direct the School’s Health Law Clinic. This position is not in the tenure stream, but is part of a system of contracts progressing to renewable long-term contracts. The position will begin on July 1, 2014.

The Clinic’s primary mission is to provide an excellent experiential learning opportunity for our students, while also providing legal services to low-income individuals involved in health-related litigation (e.g., denial of benefits, guardianship proceedings). Duties will include classroom teaching; supervision of second- and third-year law students as they represent clients and participate in community projects; and community outreach and administrative responsibilities relating to the Health Law Clinic. 

Qualifications include admission to practice in Pennsylvania or willingness to seek admission to the Pennsylvania bar; experience in the field of health law (with a preference for experience representing individuals in benefits and guardianship proceedings); and the ability to work effectively with students, clients, and other constituents. The School has a strong preference for candidates with experience in clinical pedagogy or other law school teaching experience.

To apply:  Please submit a letter of interest, resume, and a list of references to Professor Mary Crossley, Chair, Clinical Appointments Committee, University of Pittsburgh School of Law at The University of Pittsburgh is an Affirmative Action/Equal Opportunity Employer and values equality of opportunity, human dignity and diversity. The deadline for applications is­­­­­­­­­­ September 3, 2013.


July 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

Summer Reading--"The Tough-Luck Constitution"

Hello all – I am back from my teaching adventures in Italy, followed by a bit of a vacation, and am ready to resume regular blogging.  I hope everybody is having a great summer, it is good to be back in the saddle again in Spokane.

Just finished reading Prof. Andrew Koppelman’s new book “The Tough Luck Constitution and the Assault on Health Care Reform.”  Professor Koppelman nicely lays out the libertarian roots of the argument against the constitutionality of the Affordable Care Act’s individual mandate, explains how the Supreme Court’s conservatives came to embrace the argument, and puts forth his belief that this view of limited government power has nothing to do with the Constitution, but everything to do with contemporary politics.  I particularly like his christening of the libertarian position on these issues as “tough luck” philosophy; if you fall on hard times, too bad for you, and the federal government is powerless to help you.  He also aptly points out that virtually nobody actually follows this philosophy in their own life or in politics, but it fits well with the mythology of the rugged American individual, pulling himself up by his own bootstraps.

The book is written for non-experts, although having some legal background would be helpful in understanding the broader themes (he notes that other efforts by the Supreme Court to limit congressional power have been ill-advised and short-lived; such as its striking down of anti-lynching laws and child-labor laws in the pre-New-Deal era).  It is short, and although I know it is not exactly summer beach reading, it is well worth your time if you have any desire to understand the constitutional arguments about the Affordable Care Act.


July 10, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

Our Not-So-Exceptional System of Employer-Sponsored Health Insurance

In yesterday's New York Times, Ross Douthat joined the chorus that criticizes employer-sponsored health care insurance. According to Douthat, this "unsustainable relic" is a "burden on businesses, a source of perverse incentives for the health care market and an obstacle to more efficient, affordable and universal coverage."

In fact, the United States is not unusual in the extent to which it relies on companies to fund health care coverage. Indeed, employers in France, Germany and Japan shoulder a higher percentage of their countries' national health spending than do U.S. employers. Government-run systems must find sources of funding for their programs, and employers are an obvious place to look.

To be sure, there are problems with employer-sponsored coverage, but the Affordable Care Act (ACA) takes care of a very important one. Employer-sponsored coverage has promoted "job lock" in the United States. Many would-be entrepreneurs have been reluctant to start their own companies because they would lose their employer-sponsored coverage and have to pay for insurance out of their own pocket. For people with pre-existing medical conditions, insurance might not be available. Under ACA, the new entrepreneur will be able to find an affordable health care plan on an insurance exchange.

The abandonment of employer-sponsored coverage would reduce the burden on businesses only if health care costs overall were lower under the replacement system. Many health care policy experts observe that costs are lower in government-run systems overseas because the governments can exercise greater negotiating leverage with doctors and hospitals than can insurance companies in the United States. In short, the high cost of U.S. health care and its burden on business seems to be not so much a problem of relying on employers rather than individuals to purchase coverage but a problem of relying on private insurers rather than government to operate the system.



July 8, 2013 in Affordable Care Act, Employer-Sponsored Insurance, Health Care, Health Care Costs, Health Care Reform, Reform | Permalink | Comments (0) | TrackBack (0)

Sunday, July 7, 2013

Nursing Home Asks Supreme Court to Review State's Enforcement of Arbitration of Wrongful Death Claims

In early 2013, a nursing home operator filed a writ of certiorari asking the U.S. Supreme Court to determine whether state courts can refuse to enforce an arbitration agreement signed by the now deceased resident in a wrongful death action brought by the resident's survivors under the Federal Arbitration Act (FAA).[1]  In its petition, SSC Odin Operating Co. asserted that there is a conflict among the highest state courts over whether wrongful death plaintiffs are bound by arbitration agreements signed by their decedents.

In the case involving Odin Operating Company, the Illinois Supreme Court refused to enforce an arbitration agreement between a nursing home and a deceased resident that allegedly required arbitration of wrongful death claims asserted by the resident's heirs, personal representative and estate administrator.[2]  The Illinois Court explained that the wrongful death claim was not an "asset" of the estate that could have been encumbered by the decedent, the derivative nature of the claim did not require arbitration and basic contract principles barred the enforcement of the arbitration agreement against the administrator.   

The Kentucky Supreme Court [3] also held that wrongful death plaintiffs cannot be compelled to arbitrate claims. According to the Kentucky Court, under Kentucky law, wrongful death claims are not derivative, but accrue separately to the beneficiaries and are meant to compensate them for their loss. Courts in four other states, Missouri, Utah, Ohio, and Washington, have ruled similarly.[4]

In contrast, the Texas Supreme Court held that the FAA preempts a state rule of law treating arbitration agreements signed by decedents differently than other types of contracts signed by decedents.[5]  The Court held that contracts signed by decedents generally are enforceable against their estates. To hold otherwise would create an anomaly as the estate would be bound by a contract in which the decedent completely disposed of the claim, but would then not be bound by an agreement that changed the forum in which the claim would be resolved.

The Florida Supreme Court recently used similar reasoning to declare an arbitration agreement  enforceable against wrongful death plaintiffs.[6]  The Court found that a survivors' right to recover damages under the state's wrongful death act is predicated on the decedent's right to recover in a personal injury action. As a result, survivors cannot recover in actions where the decedent previously won damages or settled an action based on the same injuries that caused his or her death, or signed a document releasing the tortfeasor from liability.


[1] SSC Odin Operating Co. v. Carter, U.S., No. 12-1015, petition for review filed 2/15/13.

[2] Carter v. SSC Odin Operating Co., Ill., No. 113204, 9/20/12.

[3] Ping v. Beverly Enterprises Inc., 376 S.W.3d 581 (Ky. 2012).

[4] Mary Anne Pazanowski, Nursing Home Asks Supreme Court to Review States' Treatment of Wrongful Death Claims, 22 HLR 341(2013), available at

[5] In re Labatt Food Service LP, 279 S.W.3d 640 (Tex.2009).

[6] Laizure v. Avante at Leesburg Inc., Fla., No. SC10-2132, 2/14/13.

July 7, 2013 | Permalink | Comments (0) | TrackBack (0)