While the parties to an arbitration agreement may agree to “arbitrate threshold issues concerning the arbitration agreement,” issues concerning whether a contract was actually formed should be decided by a court.
In Edwards v. Allenbrooke Nursing and Rehabilitation Center, LLC, No. W2016-02553-COA-R3-CV (Tenn. Ct. App. Oct. 26, 2017), plaintiff sued defendant nursing home for wrongful death and health care liability claims regarding the death of plaintiff’s mother. Defendant moved to compel arbitration, attaching to its motion an arbitration agreement and Appointment of Surrogate. The Appointment of Surrogate was signed by a different daughter on April 18, 2012, and purported to give the daughter “authority to make all health care related decisions for” the mother, although the daughter’s name was erroneously put into the blank instead of the mother’s name. This Surrogate form was signed by the mother the next day. The arbitration agreement had been signed by the other daughter on April 18, “the day before Mother signed the Appointment of Surrogate form.”
The trial court denied defendant’s motion to compel arbitration, finding that the other daughter “did not have the authority to make a health care decision on behalf of Mother pursuant to the Tennessee Health Care Decisions Act, regardless of any discrepancy about the dates on the relevant documents.” The trial court pointed out that Tenn. Code Ann. § 68-11-1806 provides that a “surrogate may make a health care decision for a patient who is an adult…if, and only if: The patient has been determined by the designated physician to lack capacity…” Here, Mother’s physician specifically noted on April 20th that Mother did not lack capacity. Accordingly, the trial court “concluded that [the other sister] did not have the authority to sign the arbitration agreement on Mother’s behalf as her surrogate.” Further, the trial court noted that because the form listed the daughter’s name instead of the mother’s, it was “flawed and as such void from the beginning.” The Court of Appeals affirmed.