Georgia Court of Appeals Reverses in Atlanta Elder Negligence Case

With further progress in modern medicine and the concomitant increase in life expectancy, an increasing number of Americans find themselves living for a longer period of time than their predecessors. Increased life expectancy is certainly a positive, but many among America’s elderly population now find themselves living in nursing homes or other assisted living facilities and depending on others to provide them with care. While much of the care provided by nursing home professionals conforms to standards we expect, there remain cases when care does fall far short. One instance of possible elder negligence is at issue in a recent decision from the Georgia Court of Appeals, McKean v. GGNSC Atlanta, LLC.
McKean arose from the death of an elderly resident at Golden Living Center nursing home. The resident had been admitted to Golden Living on March 9, 2012, and remained at the facility until her death on May 19. At the time of her admission, the resident had been suffering from the recent onset of paraplegia caused by a subarachnoid hemorrhage. During the short period of time between the admission and her death, the resident developed various serious medical issues. Following the death, the son of the resident brought suit against Golden Living in his capacity as executor of his late mother’s estate in the State Court of Fulton County. The cause of these medical issues is still in dispute, since shortly after the case was brought the defendant moved to dismiss and compel arbitration, arguing that an Alternative Dispute Resolution (ADR) agreement signed by the son required that all disputes between the parties to the agreement shall be resolved through an alternative dispute resolution arbitration process. The trial court granted the motion, and the plaintiff appealed.

At issue on appeal was whether the ADR agreement signed by the son was enforceable. At the time of his mother’s admission, the plaintiff did sign the ADR agreement, and his signature was above an acknowledgement that stated the signer represented that he was a person duly authorized by the resident, or by the law, to sign on the resident’s behalf. With respect to his specific legal capacity to sign, the plaintiff indicated that his capacity to sign was as the “son” of the resident. However, the son did not possess the power of attorney to sign on his mother’s behalf at the time of contracting, and he did not acquire this power until 19 days after signing the ADR agreement, when his mother executed a durable power of attorney. There was no evidence in the record showing that the resident was present at the time the document was signed and authorized her son to sign on her behalf. Thus, the court needed to resolves whether the son was empowered to sign on his mother’s behalf, and thus bind her, and by extension himself as executor of her estate, to arbitration.
Under Georgia law, a principal-agent relationship is formed when “one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” O.C.G.A. § 10-6-1. There was no evidence that the resident provided express authority to the son to sign on her behalf prior to admission to the home. Accordingly, the existence of an agency relationship depended on there being either implied or apparent authority. For apparent authority or implied authority to exist, the principal must perform some conduct that, reasonably interpreted, causes a third party to believe the principal consented for an agent to perform an act. See Howard v. St. Paul Fire & Marine Ins. Co., 180 Ga. App. 802, 804 (1) (350 SE2d 776) (1986). In this current case, there was no evidence regarding the resident’s conduct at the time the ADR agreement was signed that the nursing home staff could reasonably interpret as creating apparent authority. Unlike the law of other states, Georgia law does not allow an purported agent to create his own apparent authority through his representations. Walker v. Williams, 177 Ga. App. 830, 832 (341 SE2d 487) (1986) (citation omitted). Furthermore, familial status is insufficient for finding that one has implied or apparent authority to contract on another’s behalf. See, e.g. Triad Health Mgmt. of Ga., III v. Johnson, 298 Ga. App. 204, 206 (2) (679 SE2d 785) (2009) (holding that a son’s familial relationship to his father is insufficient to establish the son was the father’s agent).
Having resolved that neither implied or apparent authority existed, the court then turned to whether the resident had ratified the ADR agreement after its signing and thus bound herself to its terms. In order for any form of ratification to occur, a principal must be given full knowledge of the unauthorized act and of all material facts of the agreement entered into by the purported agent. Merritt v. Marlin Outdoor Advertising, 298 Ga. App. 87, 91 (2) (b) (679 SE2d 97) (2009). In this case, the court found that there was no evidence showing that the defendant had knowledge of either the signing of the agreement or the terms of the agreement. Even though the mother later executed an instrument granting her son power of attorney, that fact alone was insufficient to show that the mother was aware her son had already acted in that capacity or the terms of agreement into which she was unknowingly entered. Accordingly, the court held that there was no ex-post ratification of the ADR agreement.
Although this plaintiff was able to avoid the effect of an agreement he did in fact sign, many others happen to find themselves bound by the terms of arbitration agreements into which they unwittingly enter. The difference between the resolution of legal claims in these settings is profound, and one should always be wary when presented with an arbitration agreement. However, even if you have signed a seemingly binding arbitration agreement, the advice of knowledgeable counsel can help you possibly avoid enforcement of the agreement. If you’ve recently been injured and are at risk of having your claims settled in binding arbitration, the Atlanta negligence attorneys at the Law Office of Terrence R. Bethune have considerable experience with wrongful death and negligence litigation and are prepared to answer the questions you may have. Contact us if you would like a free case evaluation.
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