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Estate of Bankston v. CLC of Biloxi, LLC

Court of Appeals of Mississippi

September 12, 2017

THE ESTATE OF JACK HOWARD BANKSTON, DECEASED: VICTORIA BANKSTON APPELLANT
v.
CLC OF BILOXI, LLC D/B/A BILOXI COMMUNITY LIVING CENTER APPELLEE

          DATE OF JUDGMENT: 04/26/2016

         COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. CHRISTOPHER LOUIS SCHMIDT TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: WILLIAM HARVEY BARTON DANIELLE BREWER JONES.

          ATTORNEYS FOR APPELLEE: JOHN G. WHEELER MARGARET SAMS GRATZ.

         EN BANC.

          LEE, C.J.

         ¶1. Victoria Bankston, on behalf of the estate of Jack Howard Bankston, appeals the circuit court's grant of Biloxi Community Living Center's (CLC) motion to compel arbitration. Finding error, we reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On December 21, 2012, Jack fell at his home, hitting his head and fracturing his cervical spine. He was taken to the University of Mississippi Medical Center where he underwent spinal surgery and was admitted to the ICU. While in the ICU, he suffered respiratory distress, which required an emergency bedside tracheostomy. On January 5, 2013, Jack was transferred to a long-term acute-care center, Regency, at Forrest General Hospital. Ralph C. Kahler, M.D., was his primary physician while at Forrest General from January 5, 2013, to January 30, 2013, when Jack was discharged. Dr. Kahler's discharge note indicated that Jack's diagnoses included a "closed head injury with encephalopathy related thereto" and "acute delirium secondary to [the closed head injury]."

         ¶3. On January 30, 2013, the same date as his hospital discharge, Jack was admitted to CLC. The nurse's admission notes indicate that he still had a tracheostomy, which interfered with his ability to speak. Around 3 p.m. that same day, Jack climbed out of his nursing-home bed by crawling over the rails on the left side. He was placed back in the bed. Only a few minutes later, Jack attempted to get out of his bed by crawling over the rails on the right side. He was again placed back in the bed. Around 8:30 p.m., Jack was found lying on the floor on his back. He was taken to the emergency room at Biloxi Regional Medical Center, where he died the following day-January 31, 2013.

         ¶4. On August 11, 2014, Jack's wife, Victoria, as a representative of his estate, filed a wrongful-death complaint alleging negligence against CLC. CLC responded with a motion to dismiss and compel arbitration. Jack did not sign the nursing-home admission agreement, but Victoria had signed the admission agreement with CLC on Jack's behalf as a "family member." The admission agreement contained an arbitration clause. The circuit court held a hearing on the motion, as well as ordered supplemental briefing on the issue of whether Jack lacked capacity as defined under the controlling statute, Mississippi Code Annotated section 41-41-203(d) (Rev. 2013). The circuit court held the following:

Upon review, the evidence, including Dr. Kahler's diagnoses, indicates that prior to his admission to CLC, [Jack] lacked capacity as he was unable to understand and to make and communicate his health-care needs and decisions. As a result, [Victoria] had the authority to act as his surrogate under [Mississippi Code Annotated section 41-41-211(1) (Rev. 2013)]. Accordingly, [Jack] is bound by the admission agreement and the arbitration provision therein.

         ¶5. Victoria filed a motion to reconsider, and later submitted an affidavit from Dr. Kahler in support of the motion. However, the circuit court denied Victoria's motion. Victoria now appeals, asserting that the circuit erred in: (1) finding that Victoria was a proper healthcare surrogate, (2) finding that the admission agreement was properly executed by Victoria, and (3) not reversing its decision under the motion to reconsider, in light of the filing of Dr. Kahler's affidavit. Finding the healthcare-surrogacy issue dispositive of this appeal, we decline to address Victoria's remaining issues.

         STANDARD OF REVIEW

         ¶6. This Court reviews the grant or denial of a motion to compel arbitration under a de novo standard. Harrison Cty. Commercial Lot LLC v. H. Gordon Myrick Inc., 107 So.3d 943, 949 (ΒΆ12) (Miss. 2013). In reviewing whether the motion to compel arbitration should have been granted or ...


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