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Baker v. Pawtucket Skilled Nursing and Rehabilitation, LLC

Superior Court of Rhode Island

August 16, 2016

KRISTEN BAKER, Individually and in her capacity as Administratrix for the Estate of Kathleen Fonseca, and AMADEU FONSECA

         Providence County Superior Court PC 15-0181

          For Plaintiff: Michael Bottaro, Esq.; Tamera Nichole Rocha, Esq.

          For Defendant: Sheri Pizzi, Esq.


          LICHT, J.

         The instant matter originally came before the Court on September 16, 2015 on Defendants' motion to dismiss the Plaintiffs' Complaint or, in the alternative, to stay proceedings and compel arbitration in accordance with an arbitration agreement (the Arbitration Agreement or Agreement) signed by the Plaintiffs' decedent, Kathleen Fonseca (Ms. Fonseca or Decedent) and Pawtucket Skilled Nursing and Rehabilitation, LLC (the Pawtucket Center or Defendant). Because the Plaintiffs called into question the validity of the Arbitration Agreement, the Court scheduled the matter for an evidentiary hearing[1] pursuant to G.L. 1956 § 10-3-5.[2] For the reasons set forth herein, the Court finds that the manner in which the Arbitration Agreement was presented to Ms. Fonseca made it procedurally unconscionable, and further that Ms. Fonseca lacked capacity to enter into a valid Arbitration Agreement based on the relevant circumstances at the time she signed it. Therefore, Defendants' motion to dismiss the Plaintiffs' Complaint or, in the alternative, to stay proceedings and compel arbitration, is denied.[3]



         On September 11, 2013, Ms. Fonseca was admitted to the Pawtucket Center following surgery to repair a broken hip. At some point on the following day-the exact time is not known-Ms. Fonseca allegedly signed the Arbitration Agreement, purporting to bind both parties to arbitration regarding any disputes arising out of her stay at the Pawtucket Center. Ms. Fonseca subsequently died on November 18, 2013. Her daughter, Kristen Baker (Ms. Baker), individually and in her capacity as administratrix of Ms. Fonseca's estate, filed suit against the Pawtucket Center and other Defendants on January 14, 2015, claiming wrongful death. The parties agree that Ms. Baker did not demand arbitration prior to filing suit. Ms. Fonseca's husband, Amadeu Fonseca (Mr. Fonseca), joined in the action claiming loss of consortium.

         The Pawtucket Center sought to dismiss the complaint pursuant to Super. R. Civ. P. 12(b)(1), 12(b)(3), and 12(b)(6), or, in the alternative, to stay proceedings and compel arbitration in accordance with the Arbitration Agreement and pursuant to § 10-3-1 (the Arbitration Act). Conversely, Plaintiffs moved for an evidentiary hearing with limited discovery pursuant to § 10-3-5. On September 16, 2015, the motions were argued before the Court. The Court determined that the Arbitration Agreement, if valid, was binding against all the named Plaintiffs, including Ms. Baker and Amadeu Fonseca. However, the Court also determined that the validity of the Arbitration Agreement remained in question, and granted Plaintiffs' request for an evidentiary hearing on that limited issue pursuant to § 10-3-5.[4]

         At the evidentiary hearing, Plaintiffs' case in chief included testimony from Lisa Marwell-Bussick (Ms. Marwell-Bussick), the Assistant Director of Admissions at the Pawtucket Center at the time Ms. Fonseca was a patient there; Ms. Baker; Brian Martel, Ms. Baker's boyfriend who knew Ms. Fonseca; and Dr. Francis Sparadeo, an expert witness specializing in Clinical Neuropsychology. Defendants' case in chief included expert testimony from Dr. Mark Rohrer, who specializes in internal medicine and post-acute care, with an additional certification in geriatrics. Both parties provided the Court with a number of exhibits.


         Witness Testimony


         Lisa Marwell-Bussick

         Ms. Marwell-Bussick testified that she was Assistant Director of Admissions at the Pawtucket Center during the time that Ms. Fonseca was a patient there. She had no medical or legal training and had no prior experience with arbitration agreements. As part of her responsibilities, Ms. Marwell-Bussick would review an admissions packet (the Admissions Packet) for the Pawtucket Center with each patient when they were admitted to the facility. This Admissions Packet would always include the Arbitration Agreement and needed to be completed within twenty-four hours. Ms. Marwell-Bussick further testified that before reviewing the Admissions Packet with a patient, it was her customary practice to consult with the nursing supervisor on duty regarding the patient's ability to review the packet, and also to call the resident's contact person in order to determine if the resident was capable of completing his or her own paperwork.[5] If either the patient's contact person or nursing supervisor was of the opinion that the patient was unable to complete the Admissions Packet, Ms. Marwell-Bussick averred that she would stop this process and schedule a meeting with the patient's contact person. Additionally, she stated that she never began reviewing the Admissions Packet with patients prior to 9:00 am.

         Assuming the patient's contact person and nursing supervisor did not assert that the patient was unable to complete their own paperwork, Ms. Marwell-Bussick stated that it would have been her usual practice to sit with the patient and converse with them for a time before eventually going over the Admissions Packet. Notably, Ms. Marwell-Bussick testified that it was important that no one else be in the room during this process, and thus she would have been the only person discussing the Admissions Packet with Ms. Fonseca. Ms. Marwell-Bussick further explained that she was taught by her former supervisor to explain to the patient that signing each document was voluntary, meaning the patient could "always change their mind." Ms. Marwell-Bussick also represented that after explaining what each portion of the Admissions Packet meant to a patient, she would fill in the pertinent information on each page of the Admissions Packet herself- based on how the patient responded to her explanations of each section of the packet- and subsequently have the patient sign at the end if they chose to. Furthermore, Ms. Marwell-Bussick testified that she would have followed this exact procedure with Ms. Fonseca on September 12, 2013, although she could not specifically remember doing so; she merely averred that this would have been her normal practice, and noted that some of the handwriting referenced in the packet was her own, which suggests that she went through her customary routine.


         Brian Martel

         Mr. Martel testified that he was the live-in partner of Ms. Baker. He had no medical training and did not witness Ms. Fonseca sign any documents, nor did he meet Ms. Marwell-Bussick. Because of his relationship with Ms. Baker, Mr. Martel became familiar with Ms. Fonseca's normal demeanor and behavior. Prior to her injury which led to her admission to the Pawtucket Center, Mr. Martel testified that Ms. Fonseca could walk around on her own and wore glasses regularly for reading. He further testified that he visited Ms. Fonseca at the Pawtucket Center on September 12, 2013 after he got out of work-somewhere between 4:00 PM and 5:00 PM. According to Mr. Martel, Ms. Fonseca appeared "run-down" and was drifting in and out of consciousness. He averred that her behavior was not normal, noting that she repeatedly referred to him by her son's name, Tony, and also that she was frequently asking for pain medication. He stated that she appeared disoriented and confused, and overall was "not herself."


         Kristen Baker

         Ms. Baker testified that she lived with her mother for part of her adult life, and once she began to live on her own, would visit her three or four times per week. Ms. Baker had no medical or legal training. She testified that her mother was a former licensed practical nurse who stopped working in 2007 after undergoing surgery for a heart transplant. Ms. Baker said that she visited her mother on September 12, 2013 after work-between approximately 5:00 PM and 7:00 PM. She was not involved in the completion of any of the admission paperwork, nor did she ever see any such paperwork. Further, Ms. Baker did not speak with Ms. Marwell-Bussick, a nurse, or a doctor at the Pawtucket Center regarding her mother's admission. When asked about Ms. Fonseca's state, Ms. Baker testified that her mother was sleeping on an off for most of her visit, and at times would ask for personal items such as her cellular phone or personal hygiene products. Overall, however, Ms. Baker stated that her mother could not hold a steady conversation and "was not herself." She also asserted that her mother frequently expressed that she was in pain, and further that she was concerned that her mother had been overly medicated. Ms. Baker also testified that her mother wore glasses in 2013- primarily for reading-but that she was not wearing those glasses when Ms. Baker visited her. She noted that Ms. Fonseca's glasses were in her pocketbook when she visited her on September 12, 2013, which suggests that Ms. Fonseca had not been wearing them at any point that day.


         Doctor Francis Sparadeo

         Dr. Sparadeo is a Clinical Neuropsychologist who specializes in brain disorders and behavioral relationships. He received a Post Doctorate degree from Brown University in Neuropsychology and Pain Management, and purported to be a member of several medical associations. Dr. Sparadeo is currently an adjunct professor of Psychopharmacology at Salve University, and formerly held a similar position at Brown University. His work in Neuropsychology has been published, and he routinely presents his work at both national and international conferences. Dr. Sparadeo has been appointed in the past at Rhode Island Hospital, St. Joseph's Hospital, and Our Lady of Fatima Hospital, where he, inter alia, evaluated the cognitive status of elderly patients. Currently, Dr. Sparadeo practices in traumatic brain injury and pain management and specifically assesses patients-mostly people over forty years of age-for cognitive impairment. He has participated as an expert witness in many cases in the past-including in arbitration and mediation settings-both in Rhode Island and in other states. Dr. Sparadeo was offered and accepted as an expert in Clinical Neuropsychology.

         In Dr. Sparadeo's expert opinion and to a reasonable degree of medical certainty, Ms. Fonseca did not possess the cognitive ability to understand the Arbitration Agreement at the time she signed it. Since Dr. Sparadeo never met Ms. Fonseca, he formed his opinion on the totality of her medical history-specifically relying on medical records he was provided from Tufts Medical Center and the Pawtucket Center-as well as from the perceptions of Ms. Fonseca's family regarding her abnormal behavior on September 12, 2013. See Tuft's Medical Center Discharge Summary, Pls.' Ex. 3.[6] From those records, Dr. Sparadeo determined that Ms. Fonseca possessed an increased risk of cognitive impairment based on her past medical history; specifically, her history of cardio disease (including a heart transplant), chronic kidney disease, and a brain aneurism. He also noted that the fact that Ms. Fonseca suffered a fall at Tufts Medical Center on September 6, 2013 after failing to call for help-despite reminders to do so-indicated that she was suffering from cognitive impairment.

         Dr. Sparadeo additionally explained that there were five domains of cognition: attention/concentration, learning/memory, language, visual/perceptual, and reasoning/executive function. Based on her medical records, Dr. Sparadeo averred that Ms. Fonseca was more likely than not experiencing cognitive impairments in three of these domains: attention/concentration, visual/perceptual, and reasoning/executive function, and opined that this would have affected her ability to read and understand the Arbitration Agreement at the time she signed it.[7]

         Dr. Sparadeo further formed his opinion of Ms. Fonseca's cognitive status on September 12, 2013 by reviewing her medication record. Of the bevy of medications Ms. Fonseca was taking, at least four of them affected brain function: Amitriptyline, Ativan, Gabapentin, [8] and Oxycodone. See Pawtucket Center Physician Admission Orders, Pls.' Ex. 11. While overall the dosages of these medications given to Ms. Fonseca were average-and Dr. Sparadeo conceded on cross-examination that none of them were hallucinogenic and that medicine affects people in different ways-some common side effects he noted were confusion, headaches, disorientation, memory difficulty, dizziness, mood changes, and sleepiness. In general, Dr. Sparadeo asserted that the combination of these drugs would have slowed Ms. Fonseca's cognitive processing and caused her to be confused-especially considering her advanced age. He also suggested that the fact that she indicated she was in serious pain would have further distracted her. See Occupational Therapy Initial Evaluation, Defs.' Ex. A6. Additionally, Dr. Sparadeo considered the deposition testimony of both Ms. Baker and Brian Martel in forming his opinion, and noted that Ms. Fonseca's behavior as described by both of them-such as her sleepiness and confusion-was consistent with that of a person afflicted with cognitive impairment. Such behavior also suggests that her medications were affecting her cognitive status at that time.

         When specifically considering the Arbitration Agreement, Dr. Sparadeo testified that people experiencing cognitive impairment-as he believes Ms. Fonseca was on September 12, 2013-have more trouble understanding the kind of formal language contained in the Arbitration Agreement. Furthermore, in his opinion, the Pawtucket Center did not adequately evaluate Ms. Fonseca's cognitive function prior to presenting the Admissions Packet to her.[9] Thus, in Dr. Sparadeo's opinion, Ms. Fonseca could not have understood the Arbitration Agreement she signed on September 12, 2013 as her attention, concentration, executive functioning and judgment all appear to have been impaired. Moreover, after reading the deposition ...

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