Question

Nellie Lumpkin, who suffered from dementia, was admitted to the Picayune Convalescent Center, a nursing home. Because of her mental condition, her daughter, Beverly McDaniel, signed the admissions agreement. It included a clause requiring the parties to submit any dispute to arbitra-tion. After Lumpkin left the center two years later, she filed a suit against Picayune to recover damages for mistreatment and malpractice. [Covenant Health & Rehabilitation of Picayune, LP v. Lumpkin, 23 So.2d 1092 (Miss. App. 2009)] (See Alternative Dispute Resolution.) 1.Is it ethical for this dispute—involving negligent medical care, not a breach of a commercial contract—to be forced into arbitration? Why or why not? Discuss whether medi-cal facilities should be able to impose arbitration when there is generally no bargaining over such terms.2.Should a person with limited mental capacity be held to the arbitration clause agreed to by her next of kin who signed on her behalf? Why or why not?

Answer 1

Answer:

(a) Medical arbitration is a process in which a doctor and patient work with a third partyarbitrator to resolve a dispute. This process generally takes the form of binding arbitration, meaning that whatever the outcome is, all parties must resolve to abide by it. This form of alternative dispute resolution is most commonly seen in cases where patients would normally bring suit for malpractice, with the doctor agreeing to settle by arbitration rather than in court.

Proponents of medical arbitration argue that it can be much faster than a case in court, and that in some cases, it may favor patients. However, some complaints have been lodged against the practice. Because arbitration is regarded as private, information does not enter the public record, making it harder to track malpractice claims and other legal claims related to medical practice. The privacy also means that people in arbitration do not have access to prior cases involving the same physician, facility, or procedure if these cases were handled with arbitration.

Medical arbitration also tends to favor the doctor or facility, because they retain an arbitrator and arbitration goes through them. This issue can be addressed by allowing both sides to hire an arbitrator, with the two agreeing on a neutral third party, or simply by insisting that the patient has the right to be involved in the decision about which arbitrator to use. Some people also fear that medical arbitration deprives patients of their rights, because agreeing to binding arbitration deprives people of the opportunity to take a case to court.

I think that medical facilities should not impose such type of requirement. Arbitration process can take place anywhere where there is any dispute or disagreement between two parties.There is the dispute between Lumpkin and the nursing center. Lumpkin is blaming that she did not get the adequate care. There should be any bargaining over the term. It is the matter of disagreement that can be solved by arbitrator also.

2. Yes, it is true that if a person has limited mental capacity, the case can be handled by her kin on behalf of her because of her mental situation. Like in this situation, Lumpkin

Answer 2

Answer:

In this case, as in Vicksburg Partners, “since the arbitration clause is a part of a contract (the nursing home admissions agreement) evidencing in the aggregate economic activity affecting interstate commerce, the Federal Arbitration Act is applicable․