In affirming an order denying a nursing home's motion to compel arbitration of a wrongful death claim, the Mississippi Supreme Court has indicated that a health care surrogate has statutory authority to agree to arbitration only if the arbitration agreement is a precondition to the provision of health care service. This part of the Court's opinion is arguably dicta because there was an alternate, primary basis for not applying the statute.

In Mississippi Care Center of Greenville, LLC v. Hinyub, No. 2005-CA-01239-SCT, 2008 WL 44008 (Miss. Jan. 3, 2008), Hinyub admitted her father to a nursing home owned by Mississippi Care Center (MCC). During the admission process, Hinyub signed an admission agreement that contained an arbitration provision.

When her father died, Hinyub filed a wrongful death lawsuit against MCC. In response, MCC filed a motion to compel arbitration. The trial court denied the motion.

On appeal, the principal issue was whether Hinyub had authority to agree to arbitration on her father's behalf. MCC cited two sources of authority: (1) power of attorney; and (2) the Mississippi Uniform Health Care Surrogate Statute.

The Court rejected MCC's argument that Hinyub had power of attorney when she signed the admission agreement because the alleged power of attorney was not part of the court record.

The Court also found the record lacking with respect to Hinyub's statutory authority to act as her father's health care surrogate. Under the statute, Hinyub had authority to act as her father's health care surrogate only if his primary physician had determined that he lacked capacity. See Miss. Code Ann. § 41-41-211(1) . According to the Court, the record was devoid of any evidence indicating lack of capacity.

Moreover, the Court offered an alternate reason for not applying the statute. In Covenant Health Rehab of Picayune, L.P. v. Brown, 949 So.2d 732 (Miss. 2007), the Court held that a health care surrogate had statutory authority to agree to arbitration on the patient's behalf, but the Court distinguished this case on the ground that the arbitration agreement was not a precondition to the provision of health care services. In other words, an arbitration agreement meets the statutory definition of a "health care decision" only if the health care provider requires the patient to agree to arbitration.

The Court's distinction between mandatory and voluntary arbitration agreements is mere dicta because there was an alternate, primary basis for not applying the statute. Nevertheless, this dicta creates a drafting dilemma for health care providers in Mississippi. If the arbitration agreement is mandatory, a patient may point to its mandatory nature to support an unconscionability argument. If the agreement is voluntary, a patient may argue that the agreement is not a "health care decision."

A mandatory arbitration agreement with an abbreviated right of rescission may be an effective means of resolving this dilemma because the mandatory nature of the agreement would ensure its status as a "health care decision" while the right of rescission would mitigate any concerns arising from disparate bargaining power or the exigent need for health care services.