Decisions – Miss.S.Ct. – June 23, 2016

Debra Tarvin on behalf of the wrongful death beneficiaries of Caldwell Tarvin v. CLC of Jackson,LLL d/b/a Pleasant Hills Community Living Center – ability to bind third party to arbitration agreement via the Miss. Uniform Healthcare Surrogate Act –  Debra Tarvin placed her father Caldwell into Pleasant Hills Nursing Home.  She signed the admission form containing an arbitration agreement.   In January 2011, Caldwell was taken to a hospital for treatment of severe decubitus ulcers.  He died in May.  Debra sued.   The nursing home moved to compel arbitration.  Debra argued that she had no legal authority to bind her father and that she could not bind him under the Uniform Healthcare Decisions Act because there was no reason to believe that when the nursing home argued that Caldwell was demented at the time of admission the nursing home was relying on the records pf Caldwell’s treating physician.  The trial court ordered arbitration.  Debra appealed and the Miss.S.Ct. reverses.

 Debra contends that Pleasant Hills’ “entire argument, and the trial court’s decision to grant the Motion to Compel Arbitration, rests on the proposition that the Mississippi Uniform Healthcare Surrogate Act applies.” Similarly, Pleasant Hills asserts that “[t]he only issue before this Court is whether Cassandra Thomas, M.D. qualifies as Mr. Tarvin’s primary physician under the Uniform Healthcare Decisions Act . . . and if so, whether Dr. Thomas determined that Mr. Tarvin ‘lacked capacity’ as defined by the Act.” So even though the parties presented several other arguments to the trial judge, they agree that the only issue on appeal is whether Caldwell’s primary physician had determined that he lacked capacity, such that Debra was qualified statutorily to act as his “surrogate” and to bind him to the arbitration agreement.

The Court finds that Pleasant Hills had not shown that Cassandra Thomas was Caldwell’s primary physician and, thus, Debra could not have bound him to the arbitration agreement based on Thomas’ medical records.

Randy Charles Wilson v. State – receiving stolen property –  Wilson was convicted of receiving stolen property.  On appeal he argue sthat the jury should not have been instructed “that proof that a defendant stole the property that is the subject of the charge against him, or her, shall be prima facie evidence that the defendant had knowledge that the property was stolen.”   The court finds that he failed to object and that the instruction correctly stated the law. He next argues that is was plain error for the court to give an instruction which informed the jury that the State is not required to disprove the defendant’s alibi but rather that the State must prove the defendant’s guilt beyond a reasonable doubt.  “Because Instruction S-3 correctly informed the jury of the State’s burden of proof where an alibi defense is concerned, Wilson’s claim of reversible error is without merit.”  The court also rejects his arguments regarding prosecutorial misconduct and affirms.

The Court tweaks the Mississippi Rules of Evidence.  See that order here

And grants cert in the workers comp case of  Hudspeth Regional Center v. LInda Mitchell  (the link is to the COA opinion) Linda Mitchell worked for the  Mississippi State Hudspeth Regional Center. In September 2011, she sustained an injury to her back. She  continued to work for Hudspeth until she was terminated for cause in June 2012. She did not appeal her termination. In October, 2012, Mitchell filed a petition to controvert alleging  disability due to injuries she suffered  in September  2011.   The ALJ awarded Mitchell permanent disability benefits along with medical benefits and penalties. The ALJ’s order was affirmed by the Commission.  Hudspeth appeals arguing the decisin was not based on substantial evidence.  The COA affirms.

The cert ptn  argues that

Mitchell did, in fact, return to work at pre-injury pay. Mitchell has not experienced a loss of wage-earning capacity because of her injury, but rather because of her improper conduct, and failure to perform an adequate job search. At the very least her current inability to secure work cannot be fully attributable to her injury; her actual post-injury re-employment at Hudspeth undercuts such an argument or finding. Mitchell, quite literally, did secure work in the same job at pre-injury pay. Further, Mitchell admitted that she is physically capable of returning to work, which again suggests that her current inability to find work is attributable to her improper conduct which led to her termination, not her injury.


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