240 So. 3d 456
Miss. Ct. App.2017Background
- Jack Bankston suffered a closed-head injury and spinal fracture in December 2012, underwent surgery, had a tracheostomy, and was discharged from Forrest General to Biloxi Community Living Center (CLC) on January 30, 2013.
- On the day of admission to CLC, nurses noted Jack was confused, non‑verbal (tracheostomy), and did not acknowledge understanding; he subsequently fell and died the next day.
- Victoria Bankston, as representative of Jack’s estate, sued CLC for wrongful death in 2014; CLC moved to dismiss and compel arbitration based on an admission agreement containing an arbitration clause.
- Jack did not sign the admission agreement; Victoria signed it on his behalf as a “family member.” The trial court ruled Victoria could act as Jack’s healthcare surrogate because it found Jack lacked capacity, and compelled arbitration.
- On appeal, the appellate court considered whether Victoria had authority as a healthcare surrogate under Miss. Code § 41‑41‑211(1), which requires a primary physician’s determination that the patient lacks capacity.
- The appellate court reversed, holding the record lacked an affirmative physician determination of incapacity; medical diagnoses and nursing notes alone do not satisfy the statutory prerequisite for surrogate authority.
Issues
| Issue | Plaintiff's Argument (Bankston) | Defendant's Argument (CLC) | Held |
|---|---|---|---|
| Whether Victoria validly acted as Jack’s healthcare surrogate to bind him to arbitration | Victoria lacked surrogate authority because there is no record that Jack’s primary physician made the statutorily required determination of incapacity | Dr. Kahler’s discharge summary and nursing notes showing encephalopathy, delirium, confusion, and lack of understanding establish Jack lacked capacity and thus Victoria could sign as surrogate | Reversed: surrogate authority requires an affirmative determination of incapacity by the primary physician; medical records/notes alone are insufficient |
Key Cases Cited
- Hattiesburg Health & Rehab Ctr. LLC v. Brown, 176 So.3d 17 (Miss. 2015) (interpreting healthcare‑surrogate statute and requiring physician determination of incapacity)
- Harrison Cty. Commercial Lot LLC v. H. Gordon Myrick Inc., 107 So.3d 943 (Miss. 2013) (de novo review standard for motions to compel arbitration)
- Adams Cmty. Care Ctr. v. Reed, 37 So.3d 1155 (Miss. 2010) (statutory framework for rebutting presumption of healthcare decision‑making capacity)
- Covenant Health & Rehab. of Picayune L.P. v. Brown, 949 So.2d 732 (Miss. 2007) (surrogate authority can bind patient to arbitration when physician made capacity finding)