‘I know that if I am infected, I could infect more than one thousand people. Why, why are we not helping our health sector? Why don’t we care about our health, our family’s health and our society? These are the questions I want to ask all of those who are making excuses to break this lockdown.’
Fosler v. Midwest Care Center II, No. 2-08-1005 (May 8, 2009) Winnebago County (Burke) (O’MALLEY, special concurrence) Reversed and remanded.
Trial court erred when it denied defendant’s motion to compel arbitration of plaintiff’s claim under the Nursing Home Care Act; because, contrary to holding by 5th Dist. in Carter, provisions of Section 3-606 and 3-607 of Nursing Home Care Act, which guaranty right to jury trial, are preempted by Federal Arbitration Act. Therefore, trial court should have enforced arbitration clause contained in admission agreement.
A New Mexico Appellate court affirmed a lower court decision determining that an arbitration agreement between a nursing home and its resident was procedurally unconscionable, and therefore not enforceable.
In Adkins v. Laurel Healthcare of Clovis, LLC, No. 26759 (N.M. Ct. App. Dec. 19, 2007), Ruth Painter was admitted to Laurel, a nursing home facility, and died three days later. Adkins, her son, sued Laurel for various claims resulting in personal injury and wrongful death to Painter.
In response, Laurel filed a motion to dismiss and compel arbitration pursuant to the arbitration agreement Painter signed when she entered the nursing home. Adkins argued that the arbitration agreement should not be enforced because it was procedurally and substantively unconscionable.