In August 2012, Primmer used a form entitled “VA Advance Directive: Durable Power of Attorney for Health Care and Living Will,” to appoint his daughter, Pamela McCathern, to “make decisions about [his] health care” if he “cannot make those decisions.” The form specified that it “is an official document where you can write down your preferences about your medical care” and “[i]f someday you become unable to make health care decisions for yourself, this advance directive can help guide the people who will make decisions for you.” The form further noted that it permitted the principal “to appoint a specific person to make health care decisions for you in case you become unable to make decisions for yourself” and if the person became “too ill to make decisions for yourself, your Health Care Agent will have the authority to make health care decisions for you, including decisions to admit you to and discharge you from any hospital or health care institution.” The form also stated that “[y]our Health Care Agent can also decide to start or stop any type of clinical treatment, and can access your personal health information, including information from your medical records.” The power of attorney included no definition of “health care,” but both Primmer and his daughter were residents of Ohio at the time they executed it.
At some point after executing the durable power of attorney, Primmer was no longer competent to handle his own affairs because his cognitive and physical skills were impaired. In November of 2012, McCathern signed an agreement admitting her father into the Hickory Creek Nursing Center. He remained a resident there until January 2013. On the same date that she signed the admission agreement, McCathern signed several other documents, including an arbitration agreement. That agreement provides for the waiver of the resident’s right to a trial in court or a trial by jury for any legal claims against the nursing home and for final and binding arbitration of any claim arising out of the admission agreement, including all claims based on breach of contract, negligence, medical malpractice, tort, breach of statutory duty, and resident’s rights. The agreement emphasized that “[a]greeing to arbitrate legal disputes is not a condition of admission, and care and treatment will be provided whether or not they agree to arbitrate (if they do not wish to sign this Agreement then they are under no requirement to do so).”
After leaving the facility Primmer filed a complaint in the Athens County Court of Common Pleas against 51 The Plains, Inc. dba Hickory Creek Nursing Home, BCFL Management, Inc., BCFL Holdings, Inc., dba Provider Services, Inc., Provider Services, Inc., and Dave Miller (collectively “Hickory Creek”). In his subsequently amended complaint Primmer raised multiple claims, including negligence, medical malpractice, and premises liability related to personal injuries and damages he allegedly suffered while a resident at the nursing home.
Hickory Creek filed a motion to stay proceedings and compel arbitration based on the arbitration agreement Primmer’s daughter signed on his behalf and the power of attorney for health care Primmer executed appointing his daughter as his health care agent. The matter proceeded to a hearing where Cathy Hunter, the Hickory Creek Director of Social Work, testified that she considered the arbitration agreement to be a health care decision, but she conceded that it did not have any impact on the care and treatment that Primmer received, regardless of whether he had signed it. In a detailed decision the trial court denied the motion based on the language of the power of attorney for health care, Ohio statutory provisions governing health care powers of attorney, and cases from other jurisdictions addressing the issue. The trial court also rejected Hickory Creek’s alternative claim based on McCathern’s apparent authority. This appeal ensued.