Del Ciotto v. Pa. Hosp. of the Univ. of Penn Health Sys.

177 A.3d 335

Nicholas DEL CIOTTO, individually and as Administrator of the Estate of Rocco Del Ciotto, Appellant

v.The PENNSYLVANIA HOSPITAL OF THE UNIVERSITY OF PENN HEALTH SYSTEM, University of Penn Health System, Robert Centrone, D.O., Electronic Security Solutions, LLC and Jeffrey Mitchell, Mark Testa, D.O., and Steingard & Testa Medical Associates, HCR ManorCare, Inc. and HCR Healthcare, LLC and Healthcare and Retirement Corporation of America, Interstate Reality Management Company, Norma Lottenger

Nicholas Del Ciotto, individually and as Administrator of the Estate of Rocco Del Ciotto

v.The Pennsylvania Hospital of the University of Penn Health System, University of Penn Health System, Robert Centrone, D.O., Electronic Security Solutions, LLC and Jeffrey Mitchell, Mark Testa, D.O., and Steingard & Testa Medical Associates, HCR ManorCare, Inc. and HCR Healthcare, LLC and Healthcare and Retirement Corporation of America, Interstate Reality Management Company, Norma Lottenger

Appeal of: Mark Testa, D.O., and Steingard & Testa Medical Associates

No. 2023 EDA 2016

No. 2024 EDA 2016

Superior Court of Pennsylvania.

Argued April 25, 2017

Filed December 27, 2017

John M. Skrocki, West Conshohocken, for HCR Manorcare, HCR Healthcare, and Healthcare and Retirement Corporation, appellees.

Teresa F. Sachs, and Alan Zibelman, Philadelphia, for Testa, and Steingard & Testa.

Michael Cavaliere, Philadelphia, for The Pennsylvania Hospital.

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

OPINION BY SOLANO, J.:

At Docket No. 2023 EDA 2016, Plaintiff Nicholas Del Ciotto ("Del Ciotto"), individually and as administrator of the estate of Rocco Del Ciotto ("Decedent"), appeals from the judgment entered on the arbitration award in favor of Defendant Healthcare and Retirement Corporation of America, individually and doing business as HCR ManorCare, ManorCare, Inc., HCR ManorCare, Inc., ManorCare Health Services, LLC, and Wallingford Nursing and Rehabilitation Center–Wallingford PA, LLC, individually and doing business as Wallingford Nursing and Rehabilitation Center (collectively, "ManorCare"). At Docket No. 2024 EDA 2016, Defendants Mark Testa, D.O., and Steingard & Testa Medical Associates, P.C. (together, "Testa"), also appeal from that same judgment. Defendants Pennsylvania Hospital, The Pennsylvania Hospital of the University of Pennsylvania Health System, University of Pennsylvania Health System, and Trustees of the University of Pennsylvania (collectively, "Penn") have not appealed.¹ We vacate the judgment, vacate the order entering judgment on the arbitration award, vacate in part the arbitration award to the extent it resolved Del Ciotto's wrongful death claim, affirm in part and reverse in part the order sustaining ManorCare's preliminary objections, and remand for further proceedings that may include a trial, if necessary.

Although the record exceeds 28,000 pages, many of the facts forming the basis for the underlying claims are undisputed.² Decedent had two children, Nicholas and Susan; it appears that Susan is estranged from the family. On March 1, 2011, Decedent was a tenant in a first-floor apartment when a fire broke out in the apartment above him, which activated that apartment's sprinkler system. The resulting flood caused portions of the ceiling of Decedent's apartment to fall on top of him. Decedent, then eighty-eight years old, was rushed to Pennsylvania Hospital, where he was treated for his injuries by Dr. Testa, among other doctors. Decedent's prior medical history included a diagnosis of dementia.

On March 28, 2011, Decedent was transferred from Pennsylvania Hospital to ManorCare's Wallingford Nursing and Rehabilitation Center. A few weeks later, on April 19, 2011, an arbitration agreement regarding Decedent's care at that Center was signed, and that agreement forms the basis for the parties' dispute. At the very top of the first page of the agreement, it states:

VOLUNTARY AGREEMENT: If you do not accept this Agreement, the Patient will still be allowed to live in, and receive services in, this Center.

ARBITRATION AGREEMENT ("AGREEMENT")

BY ACCEPTING THIS AGREEMENT, THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BEFORE A JUDGE AND/OR A JURY OF ANY DISPUTE BETWEEN THEM. PLEASE READ THIS AGREEMENT CAREFULLY AND IN ITS ENTIRETY BEFORE ACCEPTING ITS TERMS.

This Agreement made on __3/28/2011__ (date) by and between the Parties, Patient _Rocco Delciotto_ and/or Patient's Legal Representative _______________ (collectively referred to as "Patient"), and the Center Wallingford Nursing and Rehab, is an Agreement intended to require that Disputes be resolved by arbitration. The Patient's Legal Representative agrees that he is signing this Agreement as a Party, both in his representative and individual capacity.

Arbitration Agreement, 4/19/11, at 1, R. 319a (bold type in original). The date and the names of "Delciotto" and Wallingford were inserted in blanks on the page, but no name was inserted in the blank for the patient's legal representative.

The pertinent paragraphs of the agreement follow:

B. AGREEMENT TO ARBITRATE "DISPUTES" : Any and all claims or controversies arising out of or in any way relating to this Agreement, this Admission Agreement or any of the Patient's stays at this Center, or any Center operated by any subsidiary of HCR–Manor Care, Inc., whether or not related to medical malpractice, including but not limited to disputes regarding the making, execution, validity, enforceability, voidability, unconscionability, severability, scope, interpretation, preemption, waiver, or any other defense to enforceability of this Agreement or the Admission Agreement, whether arising out of State or Federal law, whether existing now or arising in the future, whether for statutory, compensatory or punitive damages and whether sounding in breach of contract, tort or breach of statutory duties (including, without limitation except as indicated, any claim based on Patients' Rights or a claim for unpaid Center charges), regardless of the basis for the duty or of the legal theories upon which the claim is asserted, shall be submitted to binding arbitration. Notwithstanding the above, nothing in this Agreement prevents the Patient from filing a grievance or complaint with the Center or appropriate governmental agency; from requesting an inspection of the Center from such agency; or from seeking review under any applicable federal, state or local law of any decision to involuntarily discharge or transfer the Patient from the Center.

...

9. Final with Limited Rights to Review (Appeal) : The Panel's award binds the Parties. The Parties have a limited right of review for only the express reasons allowed by the FAA.^[3]

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F. OTHER PROVISIONS :

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2. Opportunity to Review & Right to Consult with Attorney : The Patient (if competent) and the Patient's Legal Representative acknowledge that the Patient and Legal Representative have each received a copy of this Agreement, and have had an opportunity to read it (or have it read to him/her) and ask questions about it before accepting it. Please read this Agreement very carefully and ask any questions that you have before signing it. Feel free to consult with an attorney of your choice before signing this Agreement.

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4. FAA : The Parties hereby agree and intend that this Agreement, the Admission Agreement and the Patient's stays at the Center substantially involve interstate commerce, and stipulate that the Federal Arbitration Act ("FAA") in effect as of November 1, 2008 and federal case law interpreting such version of the FAA shall apply to this Agreement, shall preempt any inconsistent State law and shall not be reverse preempted by the McCarran–Ferguson Act; United States Code Title 15, Chapter 20, or other law. Any amendment to such version of the FAA is hereby expressly waived.

5. Binding on Parties & Others : The Parties intend that this Agreement shall inure to the direct benefit of and bind the Center ... and shall inure to the direct benefit of and bind the Patient (as defined herein), his/her successors, spouses, children, next of kin, guardians, administrators, legal representatives, responsible parties, assigns, agents, attorneys, health care proxies, health care surrogates, third Party beneficiaries, insurers, heirs, trustees, survivors and representatives, including the personal representatives or executors of his/her estate, any person whose claim is derived through or on behalf of the Patient or relates in any way to the Patient's stay(s) at this Center, or any person who previously assumed responsibility for providing Patient with necessary services such as food, shelter, clothing, or medicine, and any person who executed this Agreement or the Admission Agreement.

Arbitration Agreement at 1–3, R. 319a–21a (bold type and italics in original).

The signature block at the end of the Agreement was set forth as follows:

BY SIGNING BELOW, THE PARTIES CONFIRM THAT EACH OF THEM HAS READ ALL FOUR (4) PAGES OF THIS AGREEMENT AND UNDERSTANDS THAT EACH HAS WAIVED THE RIGHT TO A TRIAL BEFORE A JUDGE OR JURY AND THAT EACH OF THEM CONSENTS TO ALL OF THE TERMS OF THIS VOLUNTARY AGREEMENT.

PATIENT: PATIENT'S LEGAL REPRESENTATIVE
   __________________________________   _________________________________________________
   Printed Name (Date)                  Printed Name               (Date)
   __________________________________   _________________________________________________
   Signature of Patient                 Signature of Patient's Legal
                                        Representative1 in his/her Representative
                                        capacity
                                        _________________________________________________
                                        Signature of Patient's Legal
                                        Representative in his/her Individual
                                        capacity
   CENTER REPRESENTATIVE

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