Flores v. Evergreen At San Diego, LLC

agreement when admitting his wife, Josephina, into Evergreen’s skilled nursing facility. We conclude Luis did not have authority to bind his wife to the arbitration agreement. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2004, Josephina Flores, who was suffering from dementia and other ailments, was admitted to Evergreen’s skilled nursing facility. As part of the admission process, Luis Flores, Josephina’s husband, signed various documents provided by Evergreen. These included two arbitration agreements. The arbitration agreements provide for the use of arbitration in lieu of a lawsuit to resolve medical malpractice claims and other disputes arising from the facility’s provision of services.

When a patient is admitted to a skilled nursing facility, the patient or the patient’s representative must sign a standard admission agreement. (Health & Saf. Code,^[1] § 1599.61, subd. (a).) If the facility requests that the patient agree to arbitration, this provision cannot be included in the standard admission agreement. Instead, it must be set forth in a separate document with a separate signature line. (§ 1599.81, subd. (b).) Consistent with this statutory mandate, the arbitration agreements signed by Luis were on forms separate from the admission agreement. The signature lines on the arbitration agreements state: “Legal Rep/Responsible Party/Agent.” On the admission agreement, Luis signed a line designated “[a]gent”; on other admission documents he signed lines variously designated “[l]egal [Representative” or “[Responsible [p]arty.”

At the time he signed these documents, Luis did not have a power of attorney to act for Josephina, nor had he been declared her conservator or guardian. Approximately nine months later, in February 2005, Josephina signed a power of attorney giving Luis authority over a variety of matters, including “[c]laims and [l]itigation.”

On August 22, 2005, Josephina and Luis filed a civil complaint against Evergreen, alleging negligence and several other causes of action. According to the allegations in the complaint, on January 19, 2005, Evergreen staff allowed Josephina to fall to the floor, resulting in a leg fracture, and then failed to provide her medical treatment for approximately 24 hours. Luis pleaded a loss of consortium cause of action.

legislative directive, the spousal relationship alone is insufficient to confer authority to agree to an arbitration provision in a nursing home admission contract.

A. Agency Authority

Generally, a person who is not a party to an arbitration agreement is not bound by it. (Buckner v. Tamarin, supra, 98 Cal.App.4th at p. 142.) However, there are exceptions. For example, a patient who signs an arbitration agreement at a health care facility can bind relatives who present claims arising from the patient’s treatment. (Mormile v. Sinclair (1994) 21 Cal.App.4th 1508 , 1511-1516 [ 26 Cal.Rptr.2d 725 ]; Bolanos v. Khalatian (1991) 231 Cal.App.3d 1586 , 1591 [ 283 Cal.Rptr. 209 ].) Further, a person who is authorized to act as the patient’s agent can bind the patient to an arbitration agreement. (Garrison, supra, 132 Cal.App.4th at pp. 264-266; see Buckner, supra, 98 Cal.App.4th at p. 142.)^[2]

In Garrison, the court held that a daughter who had a durable power of attorney to make health care decisions for her mother could bind her mother to an arbitration agreement in a residential care facility’s admission documents. (Garrison, supra, 132 Cal.App.4th at p. 265.) The Garrison court reasoned that the decision whether to accept an arbitration provision in the admission documents was “part of the health care decisionmaking process” authorized in the durable power of attorney for health care. (Id. at p. 266.)

Here, Josephina did not sign the arbitration agreements; thus, this is not a case where a signatory patient binds his or her spouse who asserts a claim derived from the patient’s care. Further, unlike the situation in Garrison, at the time Luis signed the arbitration agreements he did not have a power of attorney authorizing him to act as Josephina’s agent. Thus, there was no written instrument conferring agency power on Luis.

Even when there is no written agency authorization, an agency relationship may arise by oral consent or by implication from the conduct of the parties, (van’t Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549 , 571 [ 6 Cal.Rptr.3d 746 ].) However, an agency cannot be created by the

conduct of the agent alone; rather, conduct by the principal is essential to create the agency. Agency , “can be established either by agreement between the agent and the principal, that is, a true agency [citation], or it can be founded on ostensible authority, that is, some intentional conduct or neglect on the part of the alleged principal creating a belief in the minds of third persons that an agency exists, and a reasonable reliance thereon by such third persons.” (Lovetro v. Steers (1965) 234 Cal.App.2d 461 , 474-475 [ 44 Cal.Rptr. 604 ]; see Civ. Code, §§ 2298, 2300.) “ ‘ “The principal must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control.”. . .’ [Citations.] Thus, the ‘formation of an agency relationship is a bilateral matter. Words or conduct by both principal and agent are necessary to create the relationship ....’” (van’t Rood, supra, 113 Cal.App.4th at p. 571, italics added.)

Applying these principles, in Pagarigan, supra, 99 Cal.App.4th at pages 301-302, the appellate court affirmed the denial of a nursing home’s motion to compel arbitration, finding there was no evidence that a comatose mother had authorized her daughters to act as her agents to bind her to a nursing home arbitration agreement. Pagarigan rejected the nursing home’s contention that the daughters’ act of signing the agreements created agency status, explaining that conduct by the principal was necessary to show the agency. (Ibid.)

In its arguments to the trial court, Evergreen asserted that Josephina allowed it to believe her husband had authority to act for her. However, Evergreen presented no evidence to support this claim. Evergreen presented evidence that Josephina suffers from dementia^[3] and other ailments, that she was admitted to Evergreen, and that her husband signed the admission documents on her behalf. Although Evergreen presented evidence regarding Luis’s conduct, it failed to offer evidence regarding Josephina’s conduct. The record is completely silent regarding Josephina’s and Luis’s dealings prior to her admission and/or their interactions at the time of her admission. The mere fact Luis signed the admission documents, including the arbitration agreements, is insufficient. Likewise, the fact that Josephina signed a general power of attorney form in February 2005 giving Luis agency authority does not provide the necessary evidentiary support. The power of attorney was created after Luis signed the admission documents in May 2004, and no facts were presented suggesting that by signing the power of attorney form

Josephina intended to ratify Luis’s earlier agreement to the arbitration. (See Rakestraw v. Rodrigues (1972) 8 Cal.3d 67 , 73 [ 104 Cal.Rptr. 57 , 500 P.2d 1401 ].)

Even though Evergreen presented evidence showing that Luis acted as if he were Josephina’s agent, the establishment of the agency also requires conduct on the part of Josephina conferring that status. It was Evergreen’s burden to show the validity of the arbitration agreement based on Josephina’s express or implied consent to have her husband act as her agent. As in Pagarigan, the record is devoid of any such evidence.

Evergreen’s second argument to the trial court (and its primary argument on appeal) is premised on the claim that Luis’s status as Josephina’s spouse was sufficient to confer agency status on him. Evergreen asserts Luis’s spousal status distinguishes this case from Pagarigan, which involved two daughters purporting to act on behalf of their mother. To support its assertion that the spousal relationship creates agency status, Evergreen relies on the fiduciary and support duties owed between spouses, including the duty to provide medical care. (See Fam. Code, § 4300 [general duty to support spouse]; Hawkins v. Superior Court, supra, 89 Cal.App.3d at pp. 418-419 [duty to support spouse includes provision of health care].) Although we agree that spouses are fiduciaries and owe a duty of support in the family law context, these duties do not create a power to contractually bind each other in the agency context. “[I]t is well established that an agency cannot be implied from the marriage relation alone.” (Lovetro v. Steers, supra, 234 Cal.App.2d at p. 475; see Russell v. Dopp (1995) 36 Cal.App.4th 765 , 783 [ 42 Cal.Rptr.2d 768 ]; Avedissian v. Manukian (1983) 141 Cal.App.3d 379 , 385 [ 190 Cal.Rptr. 291 ].) We recognize that “it is also true that much less evidence is required to establish a principal and agent relationship between husband and wife than between nonspouses." (Lovetro, supra, at p. 475.) Here, however, Evergreen presented no evidence of agency apart from the marital relationship. Although the establishment of an agency relationship between spouses does not require a high level of proof, the Floreses’ marital relationship cannot alone create an agency.^[4]

B. Statutory Authority

Evergreen also asserts that Luis’s authority to admit Josephina to the nursing facility and to make medical decisions for her gave him the authority to agree to arbitration on her behalf. Evergreen’s contention is based on several statutes enacted by the Legislature that permit next of kin to make certain decisions for mentally incompetent nursing home patients. The assertion raises the issue of whether, independent , of agency principles, there is a statutory basis for the authority to agree to arbitration based solely on kinship.

The Legislature has promulgated a detailed and comprehensive statutory scheme governing nursing homes.^[5] This statutory scheme includes provisions giving family members the authority to make medical decisions and to enforce a patient’s bill of rights on behalf of a mentally incompetent patient; a statute providing for the signing of an admission contract by a third party when a prospective patient is mentally incompetent; and a series of provisions permitting arbitration provisions in nursing home contracts but imposing rigorous disclosure requirements and excluding certain claims from arbitration coverage. Although the Legislature has specifically conveyed authority over medical decisionmaking and enforcement of rights to family members, it has not conveyed authority over the arbitration decision to family members. We view this as a significant omission, and accordingly conclude there is no statutory authorization for a person to agree to arbitration based solely on a familial relationship with the patient.

Statutory and Regulatory Provisions

Section 1418.8 sets forth the procedures for a physician to order medical interventions when a nursing home patient is incapable of giving informed consent and there is no person with legal authority to make the decisions for the patient. The statute defines persons with legal authority to make medical decisions as those “designated under a valid Durable Power of Attorney for Health Care, a guardian, a conservator, or next of kin.” (§ 1418.8, subd. (c), italics added.) Similarly, statutory and regulatory enactments defining a bill of rights for nursing home patients provide for enforcement of the rights by “next of kin” when the patient cannot understand the rights. Section 1599.1 enumerates a bill of rights to ensure such matters as adequate qualified

staffing, good personal hygiene, and sufficient nutrition. Section 1599.3 provides that when a patient is incompetent, unable to understand the information, or exhibiting a communication barrier, the bill of rights “shall devolve to such patient’s guardian, conservator, [or] next of kin . . . .” (Italics added.) Regulation 72527 in title 22 of the California Code of Regulations^[6] incorporates the section 1599.1 rights and delineates additional rights, such as the rights to participate in the plan of care, to consent to or refuse medical treatment, and to manage personal financial affairs. (Cal. Code Regs., § 72527, subd. (a)(3), (4), (8), (24).) This regulation provides that if a patient lacks the ability to understand these rights, the rights devolve to the patient’s representative, and defines a patient’s representative as including a conservator, a person designated in a durable power of attorney for health care, and “next of kin . . . .” (Cal. Code Regs., § 72527, subds. (c), (d), italics added.)

The Legislature has also enacted a statute addressing the situation when a prospective nursing home patient is unable to understand and sign the admission contract. Section 1599.65, subdivision (a) provides that upon a patient’s admission to a long-term care facility, the facility must explain the admission contract to a mentally competent patient and obtain his or her signature. The section states that if the patient is unable to understand the contract and cannot sign, the physician must document this fact in the patient’s file. The section contains a caveat stating that the provision does “not preclude the facility from obtaining the signature of an agent, responsible party, or a legal representative, if applicable.”^[7] (Italics added.) The section does not define who qualifies as “an agent, responsible party, or a legal representative” authorized to sign the admission contract, nor does it define the scope of authority possessed by these signatories.

Finally, there are a plethora of statutes and regulations to ensure that an arbitration agreement in a nursing home contract is obtained with the patient’s informed consent and limiting the matters that may be covered by such an arbitration agreement. Section 1599.81 requires that a nursing home admission contract clearly indicate that an arbitration agreement is not a

precondition for admission or treatment, and requires that the arbitration clause be “on a form separate from the rest of the admission contract” and contain space for the applicant’s signature. (§ 1599.81, subds. (a)-(b).)^[8] Section 1430, subdivision (b) precludes a nursing home patient from waiving the right to sue for alleged violations of the Patient’s Bill of Rights or other statutory or regulatory rights. Section 1599.81, subdivision (d) requires that a nursing home admission contract containing an arbitration provision include a notice that the patient cannot waive the right to sue for a bill of rights violation. Regulation 72516 requires that any arbitration agreement presented to a prospective nursing home resident contain an advisory “in a prominent place at the top of the proposed arbitration agreement, in bold-face font of not less than 12 point type,” stating that the arbitration agreement is not required as a condition of admission and that it cannot waive the ability to sue for a violation of the Patient’s Bill of Rights. Code of Civil Procedure section 1295, which is applicable to nursing homes, requires that an arbitration agreement governing professional negligence of a health care provider state, immediately before the patient’s signature line and in 10-point bold red type, that the party is giving up the right to a jury or court trial. (Code Civ. Proc., § 1295, subds. (b), (g)(1).)

Analysis

The question presented is whether the Legislature intended that its definition of a patient representative as including “next of kin” for purposes of medical decisions and bill of rights enforcement, be engrafted onto the authorized contract signatories identified in section 1599.65, and, if so, whether the next of kin authority extends to the arbitration decision. Facially, the status of agent, legal representative, or responsible party would not arise merely because of kinship. Using the ordinary meaning of these terms (see Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986 , 994 [ 94 Cal.Rptr.2d 643 ]), an agent is a person to whom the principal has delegated authority; a

legal representative is a person who has acquired authority through the legal process (i.e., a guardian or conservator); and a responsible party in the health care context is a person who assumes personal liability for the patient’s bills (Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632 , 645 [ 58 Cal.Rptr.2d 89 ]).^[9]

Although a mere familial relationship would not normally suffice to give a person formal representative status, as a matter of practical necessity there are certain decisions that must be made for a mentally incompetent nursing home patient even when there is no formal representative. The Legislature recognized this reality when it specified next of kin as among the persons authorized to make medical decisions and enforce the Patient’s Bill of Rights. It is likely the Legislature also intended to allow next of kin to sign a nursing home contract for the limited purpose of admitting a mentally incompetent relative to the facility, even if the family member did not technically qualify as an agent, legal representative or responsible party. As with medical decisions, admission of a mentally incompetent patient to a nursing home is sometimes necessary even when there is no person with recognized legal authority to act on behalf of the patient.^[10]

However, we cannot conclude the Legislature intended to include the arbitration decision as among the matters that may be decided by next of kin when signing a nursing home admission contract. In Pagarigan, the court held that although next of kin of a mentally incompetent patient were statutorily defined as persons authorized to make medical decisions and to exercise the patient’s rights at the facility, this authority did not “translate^