Today, nearly every nursing home dispute in Pennsylvania, and the rest of the United States, involves either an optional or mandatory predispute arbitration agreement. Although some states have resisted enforcing predispute personal injury arbitration agreements, the U.S. Supreme Court, in Marmet Health Care Center v. Brown, 565 U.S. ___ (2012) (per curiam), rejected such efforts and recently overturned a West Virginia Supreme Court of Appeals decision that “held unenforceable [as a matter of state public policy] all predispute arbitration agreements that apply to claims alleging personal injury or wrongful death against nursing homes.” In vacating the decision in Marmet, the Supreme Court held that the Federal Arbitration Act “reflects an emphatic federal policy in favor of arbitral dispute resolution,” and “when state law prohibits outright the arbitration of a particular type of claim … the conflicting rule is displaced by the FAA.” Thus, the court held that a carte blanche “prohibition against predispute agreements to arbitrate personal-injury or wrongful-death claims against nursing homes” could not stand.
Despite the strong public policy in favor of enforcing predispute nursing home arbitration agreements, the question remains: Is the arbitration agreement still enforceable if the selected arbitration forum is unavailable? The answer hinges on whether or not the unavailable arbitrator can be replaced.
