Health care agent was without authority to consent to arbitration of principal’s negligence claims

In Harrod v. Country Oaks Partners, the Supreme Court today holds that a health care agent of a skilled nursing facility resident can’t agree on the resident’s behalf to arbitrate claims of negligent care against the facility. The resident in the case was a 76-year-old man who had appointed his nephew as his health care agent.

Resolving a conflict in Court of Appeal case law, the court’s unanimous opinion by Justice Martin Jenkins focuses largely on the power of attorney executed by the resident, on a statute allowing a designated agent “to make health care decisions,” and on general agency law. It concludes “a ‘health care decision,’ under our Health Care Decisions Law and [the resident’s] power of attorney for health care, excludes an optional, separate [arbitration] agreement that does not accomplish health care objectives.”

The court also rejects the argument that its decision violates the Federal Arbitration Act; the holding “does not emerge from or reflect hostility towards arbitration,” the opinion states. Additionally, the court says it is “align[ing] California with the published opinions of numerous other state courts that — after reviewing powers of attorney formed under state statutes akin to the Health Care Decisions Law — conclude an agreement to arbitrate, particularly when optional and separate, is not a health care decision within an agent’s power.”

The court affirms the published opinion of the Second District, Division Four, Court of Appeal. Also, it disapproves the Second District, Division Five, decision in Garrison v. Superior Court (2005) 132 Cal.App.4th 253 and the Fourth District, Division Three, decision in Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259, and it disapproves dicta in the Third District’s decision in Hutcheson v. Eskaton FountainWood Lodge (2017) 17 Cal.App.5th 937. The Supreme Court denied review in Garrison with two justices voting for review and it denied review and a depublication request in Hutcheson. (See: Disapprovals of review-denied opinions show the Supreme Court is not an error-correction court.) There was no petition for review in Hogan.