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Defenses Differ in the ALF Setting There are other issues that dif-


fer in assisted living litigation. In the course of assisted living litiga- tion, various defenses need to be considered in light of the ALF setting.


Defense of Assumption of the Risk In Storm v. NSL Rockland Place, LLC,


898 A.2d 874, 884 (Del.Super.,2005), the Court rejected the defendant’s claim that a resident who drank alcohol and refused to take his medication, as- sumed the risk of falling and sustaining a subdural hematoma, even where the residency agreement contained a waiver


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Alterra Healthcare Corp. v. Estate of Linton ex rel. Graham, --- So.2d ----, 2007 WL 597008 (Fla. App. 1 Dist.) at *3, 32 Fla. L. Weekly D574 (2007), in which the ALF resident died after being allegedly beaten and raped. The Court upheld the arbitration agreement but struck down the limitation on liability clause which limited liability to $250,000 and eliminated puni- tive damages: Nor did the trial court err in its substan- tive determination that the remedial limitations in the arbitration agreement were void as against the public policy of the statute. The arbitrability of statutory claims rests on the assumption that the arbitration clause permits relief equiva- lent to that available via the courts. An arbitration clause is thus unenforceable if its provisions deprive the plaintiff of the ability to obtain meaningful relief for alleged statutory violations. See Paladino v. Avnet Computer Techs., Inc., 134 F.3d 1054, 1062 (11th Cir.1998); see also Romano, 861 So.2d at 61-63. Like the Nursing Home Residents


Act, the Assisted Living Facilities Act is a remedial statute, designed to protect the residents of such facilities. SeeBry- ant, 937 So.2d at 266. The arbitration agreement in the present case defeats the remedial purpose of the Act by eliminating punitive damages and cap- ping noneconomic damages, so the trial court correctly ruled that it was void as against public policy. SeeBryant at 266; Lacey, 918 So.2d at 334; Romano, 861 So.2d at 61-63; see also Blankfeld, 902 So.2d at 298-99; SA-PG-Ocala, 935 So.2d at 1242. In Alterra Healthcare Corp. v. Bry-


ant, 937 So.2d 263, 31 Fla. L. Weekly D2364 (Fla. App. 4 Dist.,2006), the


Summer 2007


of liability clause: As to the second theme, there is virtually no scenario in which a patient can consent to allow a healthcare provider to exercise less than “ordinary care” in the provision of services.FN41 Even if given, a patient’s consent to allow a healthcare provider to exercise less than ordinary care would be specious when considered against the strict legal, ethical and profes- sional standards that regulate the healthcare profession. Regardless of whether the patient elects to have healthcare or requires it, the patient appropriately expects that the treat- ment will be rendered in accordance


Court upheld an arbitration agreement signed with a power of attorney but severed a limitation of liability clause. In Raper v. Oliver House, LLC, 637


S.E.2d 551, 556 (N.C.App.,2006), the Court reversed the trial court’s holding that a North Carolina arbitration agree- ment was unconscionable: The trial court erred in concluding the arbitration clause was unconscionable. The trial court’s finding that there was no independent negotiation on the terms of the contract or the arbitration agree- ment is not supported by any competent evidence. Plaintiff admitted she signed the Agreement and stated she “volun- tarily enter[ed] into this agreement with the facility.” See Sciolino v. TD Water- house Investor Servs., Inc., 149 N.C. App. 642, 645, 562 S.E.2d 64, 66 (The “apparent requirement for independent negotiation underscores the importance of an arbitration provision and militates against its inclusion in contracts of adhesion.” (internal quotation omit- ted)), disc. rev. denied, 356 N.C. 167, 568 S.E.2d 611 (2002). The trial court also erred in finding the use of a stan- dardized form per se by the parties led to unconscionability of the contract. The trial court erred in concluding


the arbitration clause was unconscio- nable because of a lack of mutual agreement or inequality of bargaining power. Plaintiff’s proffered affidavit stated she “met with representatives of the Oliver House on September 1, 2001, in order to sign all of the documents necessary for Mr. Raper’s admission to the Oliver House.” Plain- tiff also signed the Agreement and stated she “voluntarily enter[ed] into this agreement with the Facility.”


Trial Reporter


with the applicable standard of care. This is so regardless of how risky or dangerous the procedure or treat- ment modality might be. FN41. The only such scenario that the Court can envision is where the patient gives informed consent to undergo an experimental medical procedure where the standards of care have not yet been fully de- veloped or consents to treatment modalities known to be outside of the medical mainstream. See e.g. Boyle v. Revici, 961 F.2d 1060 (2d Cir.1992) and Schneider v. Revici, 817 F.2d 987 (2d Cir.1987) (hold- ing that a jury charge on primary assumption of the risk was proper


The agreement to arbitrate is promi-


nently located on the last page of the contract in bold face type, directly above plaintiff’s signature. The provisions of the agreement to arbitrate are mutual and apply equally to all parties. The trial court’s findings are not supported by any competent evidence and these unsupported findings of fact do not sup- port a conclusion of unconscionability. The trial court’s determination


that the arbitration clause is uncon- scionable because it deals with a matter of substantial importance is not based upon any competent evi- dence and does not overcome North Carolina’s strong public policy pre- sumption in favor of arbitration. See Red Springs Presbyterian Church, 119 N.C. App. at 303, 458 S.E.2d at 273 (“North Carolina has a strong public policy favoring arbitration.”). The trial court’s finding of fact that


the Agreement fails to clearly state who is bound is not supported by any competent evidence. The Agreement is clear, unambiguous, and names the decedent, plaintiff, and defendant Oliver House as parties. The trial court entered an uncontested finding of fact that plaintiff held decedent’s power of attorney. Plaintiff signed the Agreement as the “Responsible Party.” Defendants’ motion sought to enforce the arbitration clause and Agreement against plain- tiff.


But seeGiordano ex rel. Estate of Brennan v. Atria Assisted Living, Virginia Beach, L.L.C.,429 F.Supp.2d 732 (E.D.Va.,2006), where the Court held that daughter did not bind mother to arbitration agreement when she signed the residency agreement.


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