This blog focuses on the law in Pennsylvania and West Virginia (and other practical issues that arise) when a family member or friend is unfortunately lost due to an accidental death.
Published: October 14, 2016
Although the below case, which involves the tragic death of an 11-day-old child, pertains to a criminal statute, it is important to civil matters from the standpoint of how the judiciary looks at the plain language of a statute when interpreting the statute.
In West Virginia v. Louk, 237 S.E.2d 219 (W.Va. 2016), the defendant injected methamphetamine when she was thirty-seven weeks pregnant. Hours later, the defendant suffered acute respiratory distress caused by the methamphetamine. Due to concerns the fetus was being deprived of oxygen, a doctor performed an emergency C-section. A forensic pathologist, who performed the autopsy on the child, stated the child was born “essentially brain dead” from a lack of oxygen. Id. at 222. A Nicholas County, West Virginia Grand Jury indicted the defendant on one felony count of child neglect resulting in death pursuant to W.Va. Code Section 61-8D-4a. A jury later convicted defendant. She was sentenced to be incarcerated for three to fifteen years. The defendant appealed the conviction.
On appeal, the West Virginia Supreme Court of Appeals addressed this issue: “whether a pregnant woman who ingests a controlled substance which results in harm to her subsequently born child can be charged with child neglect resulting in death, as set forth in W.Va. Code Section 61-8D-4a.” Id. W.Va. Code Section 61-8D-4a provides: “If any parent, guardian or custodian shall neglect a child under his or her care, custody or control and by such neglect cause the death of said child, then such parent, guardian or custodian shall be guilty of a felony ….” Id. at 222-23.
The defendant argued that an “unborn child” or “fetus” is not a “child” under W.Va. Code Section 61-8D-4a and thus the statute did not apply to her.
After reviewing the plain language of the statute and other statutes passed by the West Virginia Legislature that specifically mention and define “fetus” and mention “unborn child,” the West Virginia Supreme Court of Appeals held that W.Va. Code Section 61-8D-4a does not mention “fetus” or “unborn child.” As such, the court further held that the child neglect resulting in death statute does not encompass prenatal acts. Id. at 228. Because the statute does not apply to a fetus or unborn child or to prenatal acts, the court vacated the conviction and remanded the matter to the circuit court for the entry of a judgement of acquittal. Id.
This case is an example of the difficult issues that a court can face in civil and criminal matters. Yet, the court must follow the plain language of a statute as written and passed by the legislature.
Published: October 7, 2016
Over the past year, I have reported on cases in which the Superior Court of Pennsylvania refused to require arbitration of wrongful death and survival actions, despite the existence of an arbitration agreement with a nursing home facility, arising from the alleged action or inaction of the nursing home causing the death of a resident. On September 28, 2016, the Supreme Court of Pennsylvania in Taylor v. Extendicare Health Facilities, Inc., 2016 WL 5630669 (Pa. Sep. 28, 2016), disagreed with those prior decisions and reversed the Superior Court of Pennsylvania in Taylor.
By way of background, in the reversed decision from the Superior Court of Pennsylvania, Taylor v. Extendicare Health Facilities, Inc., 113 A.2d 317 (Pa. Super. 2015), the Superior Court previously held that a survival claim arising from the death of Anna Marie Taylor at an Extendicare Facility could not be separated (or bifurcated) from the wrongful death claim of her beneficiaries. The court held this despite William Taylor, pursuant to a power of attorney authorizing him to act on Mrs. Taylor’s behalf, signing an arbitration agreement requiring the arbitration of all disputes arising out of Ms. Taylor’s stay at the Extendicare Facility as part of the admissions paperwork. In so holding, the Superior Court of Pennsylvania relied on Pennsylvania Rule of Civil Procedure 213(e), which requires the consolidation of survival and wrongful death actions for trial.
In reversing the Superior Court, the Supreme Court of Pennsylvania focused on the Federal Arbitration Act (“FAA”), which Congress passed in 1925. According to the Supreme Court of Pennsylvania, the FAA “provides that arbitration agreements ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.'” Taylor, 2016 WL 5630669 at *1. After reviewing opinions issued by the United States Supreme Court pertaining to the preemptive effect of the FAA on conflicting state laws, the Supreme Court of Pennsylvania concluded “that the FAA preempts the application of Rule 213(e), and requires arbitration of the survival claim against Extendicare.” Id.
The Supreme Court of Pennsylvania did express sympathy for nursing home residents subject to arbitration agreements and stated “the contract formation process that attends nursing facility admission can be a crisis-driven, stress-laden event involving the superior bargaining power of one party over the other. … Indeed, nursing home defendants have reaped significant benefits from channeling medical malpractice claims into arbitration to the detriment of medical malpractice victims.” Id. at *16. Nevertheless, the Supreme Court of Pennsylvania ultimately stated that it could not disregard or defy controlling precedent from the United States Supreme Court. Id.
What is the effect of Taylor in Pennsylvania? For now, it appears that survival actions subject to nursing home arbitration agreements will likely have to go through the arbitration process when Pennsylvania substantive law applies, unless the plaintiff can prove a common law defense such as mistake, lack of consideration, impracticability, unconscionability etc.
Fortunately, as I reported in my prior post, on September 28, 2016, which was the same day of the Taylor decision, the Centers for Medicare and Medicaid Services, which is part of the U.S. Department of Health and Human Services, announced that it issued a final rule prohibiting the use of pre-dispute binding arbitration agreements as to long-term care facilities / nursing homes that receive federal funding from Medicare and Medicaid. The new rule goes into effect on November 28, 2016, but, unfortunately, is not retroactive, so the Pennsylvania Supreme Court’s reversal in Taylor will still affect arbitration agreements entered into prior to November 28, 2016.