Don Willenburg, Co-Chair of GRSM’s Appellate Practice Group, recently co-authored an amicus brief in the United States Supreme Court, supporting arbitration in health care facilities and elsewhere.
The amicus brief was in support of a petition for a writ of certiorari from a California Supreme Court decision, Harrod v. Country Oaks Partners, LLC, 15 Cal. 5th 939 (2024), which ruled that a broad power of attorney for health care decisions did not authorize the agent to agree to arbitration of the principal’s claims. The California court’s rationale was that the power of attorney did not explicitly mention arbitration.
As the petition and the amicus brief pointed out, this is inconsistent with the prior United States Supreme Court decision in Kindred Nursing Centers Ltd. v. Clark, 581 U.S. 246, (2017), which rejected Kentucky’s adoption of such a “clear-statement rule” and ruled that an arbitration agreement signed by an agent pursuant to an advance directive-power of attorney cannot be singled out for this kind of “disfavored treatment.” Id. at 248, 252. The amicus brief argued that the California Supreme Court’s decision in Harrod resulted in such “disfavored treatment” because it “singled out dispute resolution through arbitration as one term a health care agent may not include in a contract on behalf of the principal.”
The amicus brief further emphasized that the power of attorney need not specifically authorize each act the agent undertakes—such as agreeing to arbitrate disputes—so long as the agent’s acts are carried out to accomplish the purposes of the directive, like, for example, contracting with a health facility in providing for the principal’s medical care. The California ruling also did not put arbitration on “equal footing" with other matters within the designated agent’s authority. The ruling could leave many patients without anyone—neither the patient, a family member, nor an appointed agent—with the capacity to agree to arbitration, which is often the quickest and best route to resolution.
Willenburg co-authored the brief on behalf of the Association of Defense Counsel of Northern California and Nevada, where he serves as Chair of the Amicus Committee.
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