McRedmond v. HCR HealthCare, LLC

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AMBER MCREDMOND, individually and as the Administratrix of the Estate of ROBERT MCREDMOND, SR., and ROBERT MCREDMOND, JR., individually, Plaintiffs, v. HCR HEALTHCARE, LLC, HCR II HEALTHCARE, LLC, HCR III HEALTHCARE, LLC, HCR MANOR CARE SERVICES, LLC, MANOR CARE-PIKE CREEK OF WILMINGTON, DE, LLC, PROMEDICA HEALTH SYSTEM, INC., and PROMEDICA SENIOR CARE MEDICAL SERVICES I, LLC, Defendants.

Civil Action No. 22-692-CFC

United States District Court, D. Delaware

December 20, 2022

Patrick Christopher Gallagher, JACOBS & CRUMPLAR, P.A. Wilmington, Delaware Counsel for Plaintiffs

Geoffrey Graham Grivner, Kody Macgyver Sparks, BUCHANAN INGERSOLL & ROONEY PC, Wilmington, Delaware; Joshua T Calo, David L. Gordon, BUCHANAN INGERSOLL & ROONEY PC, Princeton, New Jersey Counsel for Defendants

MEMORANDUM OPINION

COLM F. CONNOLLY CHIEF JUDGE

Robert McRedmond, Sr., (Robert Senior) was a patient in a skilled nursing facility in New Castle County, Delaware just before he passed away from COVID-19 in May 2019. That facility was operated by Defendants ProMedica Health Systems, Inc., HCR Healthcare, LLC, ProMedica Senior Care Medical Services I, LLC, HCR II Healthcare, LLC, HCR III Healthcare, LLC, Manor Care-Pike Creek of Wilmington, DE, LLC, and HCR Manor Care Services, LLC (collectively, Manor Care). Robert Senior's children, Plaintiffs Robert McRedmond, Jr. (Robert Junior) and Amber McRedmond, brought this suit for negligence and wrongful death against Manor Care in the Superior Court of the State of Delaware in New Castle County. Manor Care removed the case to this Court pursuant to 28 U.S.C. § 1441(a).

Manor Care has now moved to compel arbitration of Plaintiffs' claims under 9 U.S.C. § 1, et seq., or alternatively to dismiss the case for lack of subject matter jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). D.I. 15. I have subject matter jurisdiction over this action under 28 U.S.C. § 1332(a)(1) and 9 U.S.C. § 4.

I. BACKGROUND^[1]

A. Robert Senior's 2018 Admission to the Pike Creek Facility

In June 2018, Robert Senior was admitted to a skilled nursing facility operated by Manor Care in Pike Creek, Delaware. D.L 13 ¶¶ 4, 61. Pike Creek is located in New Castle County. Robert Senior was discharged from the Pike Creek facility in July 2018. D.L 13 ¶ 61. In the ensuing months, he spent periods of time living at home with his children, in a hospital, and in another nursing facility. D.L 13 ¶ 61.

B. Robert Senior's 2019 Admission to the Pike Creek Facility

In May 2019, after having suffered a stroke, Robert Senior was re-admitted to the Pike Creek facility. D.L 13 ¶ 62. Upon his re-admission, Manor Care presented Robert Senior and Robert Junior with two standard form contracts: an “Admission Agreement between Patient and Center” (the 2019 Admission Agreement) and a “Voluntary Arbitration Agreement” (the 2019 Voluntary Arbitration Agreement). D.L 13 ¶ 63; D.L 13-2.

Robert Junior signed the 2019 Admission Agreement as the “Responsible Party” for his father, who is identified in the Agreement as “Patient.” D.L 13-2 at 2. (Under section four of the 2019 Admission Agreement, the “Responsible Party's Responsibilities” include, among other things, “[p]ay[ing] for all charges that Patient incurs while at the [Pike Creek facility] from the Patient's income or resources,” “[n]otify[ing] [Manor Care] immediately and in writing if the Patient's financial resources are depleted,” and “[s]ecur[ing] Medicaid in a timely and proper manner.” D.I. 13-2 at 4.)

Under the heading “Other Documents that require your signature,” the 2019 Admission Agreement lists four documents, one of which is the “Voluntary Arbitration Agreement, if elected.” D.I. 13-2 at 2. Section five of the 2019 Admission Agreement, titled “Venue Notice,” provides in relevant part:

All claims relating to ... any past, present or future admission of the Patient to the [Pike Creek facility], including ... any claim relating in any way to the care and treatment provided to the Patient, will be brought in the Court of the County and State where the [facility] is located.... If you agree to the Voluntary Arbitration Agreement, which is a separate agreement from this Agreement, the Voluntary Arbitration Agreement will control. If, however, the Voluntary Arbitration Agreement is not signed or it is not enforced for any reason, this Venue Notice section will control. If you do not agree to this Venue Notice section, please initial here:

D.I. 13-2 at 4. Neither Robert Senior nor Robert Junior initialed the Venue Notice section. See D.I. 13-2 at 4.

Paragraphs 1 and 2 of the 2019 Voluntary Arbitration Agreement read as follows:

1. Voluntary Agreement to Arbitrate Disputes. The parties agree that they will mutually benefit from the speedy and efficient resolution of any dispute or controversy which may arise between them. This is a voluntary Agreement to have all disputes resolved through binding arbitration by an independent neutral Arbitrator who will be selected by the parties as specified in this Agreement. THE PARTIES AGREE THAT THEY ARE WAIVING THE RIGHT TO TRIAL BY JURY. ANY DISPUTES BETWEEN THE PARTIES WILL BE RESOLVED EXCLUSIVELY THROUGH BINDING ARBITRATION.

2. Parties. This Agreement and the definitions in this Section will be interpreted as broadly as possible so as to bind and benefit any person who asserts any claim or against whom a claim is asserted by or on behalf of [Manor Care] or the Patient. The parties intend to allow any person alleged to be liable for any actions or inactions of [Manor Care] or the Patient or related to any care provided to the Patient to demand arbitration pursuant to this Agreement.

b. “Patient” includes the Patient, the Patient's Representative, the Patient's guardian, attorney-in-fact, agent, sponsor, or any person whose claim is derived through or on behalf of the Patient, including any spouse, child, parent, executor, administrator, personal representative, heir, or survivor, as well as anyone entitled to bring a wrongful death claim relating to the Patient. The Patient is an intended third-party beneficiary of this Agreement.

D.I. 13-2 at 15 (capitalization in the original).

Robert Senior refused to sign the 2019 Voluntary Arbitration Agreement, and his refusal “was noted on the document.” D.L 13 ¶ 63; D.L 13-2 at 17 (handwriting stating “declined to sign”). Robert Junior also did not sign the 2019 Voluntary Arbitration Agreement. See D.I. 13 ¶ 63; D.I. 13-2 at 17.

C. The Actions That Led to This Suit

Robert Senior did not leave the Pike Creek facility until shortly before his death on May 19, 2020. D.I. 13 ¶¶ 62, 73. During his approximately year-long stay at the Pike Creek facility, the COVID-19 pandemic struck. Between the onset of COVID-19 and May 12, 2020, Manor Care told Robert Senior's family that he had a room to himself to protect him from COVID-19, when, in reality, he had a roommate who died of COVID-19. D.I. 13 ¶ 67. During a video chat with Robert Senior in May 2020, Robert Junior observed a nurse in Robert Senior's room not wearing a mask. D.I. 13 ¶ 69. When Robert Junior questioned the nurse about her not wearing a mask, she said the call was “breaking up” and, at that point, the call disconnected. D.I. 13 ¶ 69. When the call resumed, the nurse was wearing a mask. D.I. 13 ¶ 69.

Robert Senior's daily progress notes indicate that he had a cough and shortness of breath on May 8, 2020 and that he was in respiratory isolation on May 9 but not in respiratory isolation on May 10. D.I. 13 ¶¶ 70-71. It appears from the progress notes that Manor Care did not check Robert Senior's vital signs from May 7 through May 12. D.I. 13 ¶ 72. On May 12, Robert Senior was noted to have had difficulty breathing, swollen lower extremities, and a pale complexion; and “[a] decision was made to send him to [a hospital's emergency room] for evaluation.” D.L 13 ¶ 73. At some point (the Amended Complaint does not give a date), Robert Senior was transported to Christiana Hospital, where he tested positive for COVID-19 and was intubated. D.L 13 ¶ 73. Robert Senior died on May 19, 2020 “due to COVID-19.” D.L 13 ¶ 73.

II. PROCEDURAL POSTURE AND ISSUES BEFORE ME

On April 14, 2022, Plaintiffs sued Manor Care in the Superior Court of the State of Delaware in New Castle County, Delaware. D.L 1-1 at 6. The Superior Court is the trial court of general jurisdiction in Delaware, and thus the Delaware state court where negligence and wrongful death claims are tried. See DEL. CONST. art. IV, § 7; 10 Del. C. § 542. Notwithstanding the fact that the 2019 Admission Agreement explicitly states that “[a]// claims relating to ... any past, present or future admission of the Patient to the [Pike Creek facility], including ... any claim relating in any way to the care and treatment provided to the Patient, will be brought in the Court of the County and State where the [facility} is located D.L 13-2 at 4 (emphasis added), Manor Care removed the case to this Court, thereby depriving Plaintiffs of the venue the parties had contractually agreed to. D.L 1.

Compounding this deprivation and causing further delay and attorney fees for Plaintiffs to litigate this motion, Manor Care has moved to compel arbitration of Plaintiffs' claims. Now, given the express language of the 2019 Admission Agreement and the undisputed fact that neither Robert Senior nor Robert Junior signed the Voluntary Arbitration Agreement presented to them by Manor Care in 2019, you might be thinking, how could that be? Well, it turns out that when Robert Senior was admitted to the Pike Creek facility in June 2018, he signed the exact same standard form Voluntary Arbitration Agreement he and his son refused to sign in 2019. And Manor...