Grace Gray v. PruitHealth-North Augusta, LLC

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Grace Gray, Individually and as Wife of Willie J. Gray,
deceased, and as Personal Representative of The Estate
of Willie J. Gray, deceased, Respondent,

v.

PruittHealth-North Augusta, LLC; UHS Pruitt
Corporation a/k/a PruittHealth, Inc.; PruittHealth
Consulting Services, Inc.; United Health Services of
South Carolina, Inc.; John Doe, and Richard Roe
Corporation, Appellants.

Appellate Case No. 2019-001102

Appeal From Aiken County
R. Keith Kelly, Circuit Court Judge

Unpublished Opinion No. 2024-UP-292
Submitted May 2, 2022 – Filed August 7, 2024

REVERSED AND REMANDED

Joshua Steven Whitley, of Smyth Whitley, LLC, of
Charleston, for Appellants.

Kenneth Luke Connor, Christopher Caleb Connor, and
Anne Katharine Moore, of Connor & Connor, LLC, of
Aiken, and Allen Keith McAlister, Jr., of Hawk Law
Group, of Aiken, all for Respondent.

MCDONALD, J.: This is an appeal from the circuit court's order denying a
motion to dismiss and to compel arbitration filed by PruittHealth-North Augusta,
LLC; UHS Pruitt Corporation a/k/a PruittHealth, Inc.; Pruitt Health Consulting
Services, Inc.; and United Health Services of South Carolina, Inc. (collectively,
Appellants). Appellants assert the circuit court erred in finding the Arbitration
Agreement executed by Tamara Donnelle Gray (Daughter) on behalf of her father,
Willie James Gray, is unenforceable. Because the power of attorney Gray
executed while hospitalized in Georgia gave Daughter the authority necessary to
execute the Arbitration Agreement on his behalf, we reverse and remand for
arbitration.

Facts and Procedural History

On July 27, 2017, Gray was involved in a car accident and transported to
University Hospital in Augusta, Georgia; he complained of bilateral arm weakness
and pain. Gray was diagnosed with an acute spinal cord injury and underwent
surgery for spinal cord decompression and a cervical fusion. He developed
postoperative complications, including but not limited to a stroke, and was
eventually diagnosed with quadriparesis and acute respiratory failure necessitating
ventilation. Although Gray was seemingly oriented, he had only a limited ability
to communicate.

On August 10, 2017, during his Georgia hospital stay, Gray executed a power of
attorney appointing Daughter or his wife as his "true and lawful agent and
attorney-in-fact." He also completed a Georgia Advance Directive for Health Care
(HCPOA) appointing Daughter as his health care agent and potential guardian and
Wife as his "back-up health care agent."

Gray spent a total of thirty-four days at University Hospital before he was
transferred to Select Specialty Hospital for continuation of care and ventilator
weaning. He was then transferred to PruittHealth-North Augusta (PruittHealth) for
short-term rehabilitation.1 As part of the admissions process, Daughter executed
various documents on Gray's behalf, including the Arbitration Agreement at issue.

1
Gray planned to transfer to a nursing facility near Daughter's Pennsylvania home
once his rehabilitation was complete.
While in PruittHealth's care, Gray developed a Stage IV sacral decubitus ulcer and
suffered other pressure ulcerations, an infection, sepsis, malnutrition, and
dehydration. On October 26, 2017, PruittHealth deemed Gray stable for discharge
and arranged to transfer him to Chester Valley Nursing Facility in Pennsylvania.
However, during transport, EMS found Gray was unstable and his blood sugars
were dangerously out of range. Thus, EMS diverted to the nearest hospital in
Wilson, North Carolina.

Wilson Emergency Department staff diagnosed Gray with severe sepsis and
admitted him. He was hospitalized for ten days and underwent wound therapy,
including two debridements of an abscessed sacral decubitus ulcer. Wilson
Medical Center discharged Gray on November 5, with a diagnosis of sacral
decubitus ulcer with associated cellulitis and abscess (following extensive
debridement), sepsis, acute metabolic encephalopathy, and sinus tachycardia.

Gray then continued his journey to Pennsylvania, where he was admitted to
Chester Valley on November 6, 2017. Gray received stringent wound care, and a
wound VAC was applied to his sacral wound. Gray died on June 19, 2018.

Wife filed a notice of intent to file suit (NIF), along with the required expert
witness affidavit, and served Appellants. Appellants moved to dismiss and to
compel arbitration, which Wife opposed.

Following a hearing, the circuit court denied Appellants' motions, finding Gray's
power of attorney (POA) "did not confer the necessary authority to execute an
arbitration agreement on Decedent's behalf" because it was not identified as a
general durable power of attorney and did not confer authority upon Daughter to
enter contracts generally, to enter releases on Gray's behalf, or to waive his
constitutional right to a jury trial. The circuit court further noted the POA did not
include the "catch-all provision giving the attorney-in-fact the authority 'to sign
any and all releases or consent required.'" Finally, the circuit court found that even
if Daughter had actual or apparent authority to sign, the agreement was
"unenforceable against [Gray's] wrongful death statutory beneficiaries under South
Carolina contract law defenses." The circuit court denied Appellants' Rule 59(e),
SCRCP, motion to reconsider, and Appellants timely appealed.

Analysis
"Arbitrability determinations are subject to de novo review." Arredondo v. SNH
SE Ashley River Tenant, LLC, 433 S.C. 69, 74, 856 S.E.2d 550, 553 (2021)
(quoting Johnson v. Heritage Healthcare of Estill, LLC, 416 S.C. 508, 512, 788
S.E.2d 216, 218 (2016)). "The litigant opposing arbitration bears the burden of
demonstrating that he has a valid defense to arbitration." Id. at 75, 856 S.E.2d at
553 (quoting Johnson, 416 S.C. at 512, 788 S.E.2d at 218).

Appellants argue the circuit court erred in finding the Arbitration Agreement
unenforceable on the basis that neither the POA nor HCPOA provided Daughter
the authority necessary to execute the Agreement on Gray's behalf. We agree.

"A power of attorney is an instrument in writing by which one person, as principal,
appoints another as his agent and confers upon him the authority to perform certain
specified acts or kinds of acts on behalf of the principal. The written authorization
itself is the power of attorney." Stott v. White Oak Manor, Inc., 426 S.C. 568, 573,
828 S.E.2d 82, 85 (Ct. App. 2019) (quoting Watson v. Underwood, 407 S.C. 443,
454, 756 S.E.2d 155, 161 (Ct. App. 2014)). "Our courts have looked to contract
law when reviewing actions to set aside or interpret a power of attorney."
Arredondo, 433 S.C. at 75, 856 S.E.2d at 553 (quoting Stott, 426 S.C. at 577, 828
S.E.2d at 87). "The cardinal rule of contract interpretation is to ascertain and give
effect to the intention of the parties, and, in determining that intention, the court
looks to the language of the contract." Id. at 75, 856 S.E.2d at 553-54 (quoting
Stott, 426 S.C. at 577, 828 S.E.2d at 87). "When the language of a contract is plain
and capable of legal construction, that language alone determines the instrument's
force and effect." Id. at 75, 856 S.E.2d at 554 (quoting Stott, 426 S.C. at 577, 828
S.E.2d at 87). Therefore, we must consider the validity and language of the POA
in determining whether Daughter had authority to execute the Arbitration
Agreement on Gray's behalf.2

2
By statute, we look to Georgia law in analyzing the validity of the POA Gray
executed while hospitalized in Georgia. See S.C. Code Ann. § 62-8-107
(providing "[t]he meaning and effect of a power of attorney is determined by the
law of the jurisdiction indicated in the power of attorney and, in the absence of an
indication of jurisdiction, by the law of the jurisdiction in which the power of
attorney was executed"); Ga. Code Ann. § 10-6B-5 (2017) (providing a POA "shall
be: (1) Signed by the principal or by another individual in such principal's presence
at the principal's express direction; (2) Attested to in the presence of the principal
by a competent witness who is not also named as an agent in the [POA] being
attested; and (3) Attested as set forth in [Ga.] Code § 44-2-15 in the presence of the
Under the South Carolina Uniform Power of Attorney Act (the Act),3 a "[p]ower of
attorney" is a "writing or other record that grants authority to an agent to act in
place of the principal." S.C. Code Ann. § 62-8-102(7) (2017); see also Watson,
407 at 454, 756 S.E.2d at 161 ("'A power of attorney is an instrument in writing by
which one person, as principal, appoints another as his agent and confers upon him
the authority to perform certain specified acts or kinds of acts on behalf of the
principal. The written authorization itself is the power of attorney.'" (quoting In re
Thames, 344 S.C. 564, 569, 544 S.E.2d 854, 856 (Ct. App. 2001))). "A power of
attorney classified as 'durable' contains language establishing the principal's intent
that the attorney-in-fact or agent's authority be exercisable during periods of the
principal's physical or mental incapacity." Stott, 426 S.C. at 574, 828 S.E.2d at 85;
see also Gaddy v. Douglass, 359 S.C. 329, 344 n.11, 597 S.E.2d 12, 20 n.11 (Ct.
App. 2004) ("'Durable' is a term of art signifying that a power of attorney survives
the principal's disability.").

Respondent references the power of attorney Gray executed as a "General POA for
Finance," but the instrument itself contains no such title. The instrument Gray
executed—in the presence of the witness and notary required by Georgia law—is
untitled, but provision five specifically states,

This is a durable power of attorney, and it shall NOT be
terminated by my incompetency. This is a power to act
as attorney-in-fact for me, and if I subsequently become
incompetent, it shall remain in force until such time as a
guardian or receiver shall be appointed for me or until
some other judicial proceeding shall terminate the power.

Thus, the circuit court erred in finding "[t]his document is titled 'Power of
Attorney' and is not identified [as] a General Durable Power of Attorney." See
Arredondo, 433 S.C. at 80, 856 S.E.2d at 556 (noting "the mere title of the
document" was not dispositive as to the powers granted to Arredondo "beyond the
plain meaning of the provisions contained in the document").

In the POA's opening paragraph, Gray appointed Daughter (or Wife) as

principal" by a notary public or other officer authorized to attest registrable
instruments).
3
S.C. Code Ann. §§ 62-8-101 to -403 (2017).
[his] true and lawful agent and attorney-in-fact, to do and
perform in [his] name and behalf any and all things that
she may think desirable or proper in as full and complete
a manner as [he] could do if present and acting in person,
including specifically, but without limitation, upon the
foregoing generality of statement[.]

The document then sets out a number of specific acts the attorney-in-fact may take
"without limitation." Later in the document, Gray stated:

I hereby specifically ratify and confirm all that my said
attorney-in-fact shall do at any time and from time to
time by virtue of these presents, which shall cover and
include the right to do any act or thing that I might do as
above set forth, in the same manner and to the same
effect as if I were personally present and acting.

Our review of the record reveals: (1) Daughter was appointed Gray's
attorney-in-fact through the Georgia POA; (2) Daughter assisted with Gray's
admission to Appellants' facility; and (3) Daughter signed both the Admission
Agreement and Arbitration Agreement as Gray's representative. Although
Daughter does not deny she signed Gray's admitting documents, she claimed in her
affidavit opposing the motion to compel arbitration that she did not recall signing
the Arbitration Agreement. In the same affidavit, Daughter stated she was "led to
believe the documents [she] was asked to sign were necessary for admission to the
facility."

The Arbitration Agreement Daughter signed is a five-page document with the
following language in bold on the first page:

I. Arbitration

THE PATIENT AND THE HEALTHCARE
CENTER UNDERSTAND AND ACKNOWLEDGE
THAT THIS AGREEMENT IS A VOLUNTARY
AGREEMENT TO SUBMIT FOR RESOLUTION
BY ARBITRATION ANY DISPUTES THAT MAY
ARISE IN THE FUTURE BETWEEN THE
PARTIES. THE PARTIES FURTHER
UNDERSTAND AND ACKNOWLDGE THAT, AS
TO ALL DISPUTES THAT ARE GOVERNED BY
THIS AGREEMENT, EACH OF THE PARTIES IS
WAIVING THE RIGHT TO TRIAL BY JURY, AND
INSTEAD, ANY DISPUTES BETWEEN THE
PARTIES SHALL BE RESOLVED THROUGH
BINDING ARBITRATION.

By affidavit, Daughter further claimed she was not informed she was waiving the
right to a jury trial; she was not informed she could consult an attorney before
signing; and she did not discuss the admission documents with Gray before signing
them. Yet, the signature page of the Arbitration Agreement specifically notes the
"Patient/Resident has the right to seek legal counsel" concerning the Arbitration
Agreement, the signing of the Agreement "is not a precondition to admission," and
the Agreement may be revoked within thirty (30) days of signing. Moreover, the
Agreement contains the following bold language above the signature area:

THIS AGREEMENT GOVERNS IMPORTANT
LEGAL MATTERS. PLEASE READ THE
AGREEMENT IN ITS ENTIRETY BEFORE
SIGNING. THE PARTIES UNDERSTAND AND
ACKNOWLEDGE THAT, AS TO ALL DISPUTES
THAT ARE GOVERNED BY THIS AGREMEENT,
EACH OF THE PARTIES IS WAIVING THE
RIGHT TO TRIAL BY JURY, AND INSTEAD
DISPUTES BETWEEN THE PARTIES SHALL BE
RESOLVED THROUGH ARBITRATION.

We find Daughter and PruittHealth entered an enforceable arbitration agreement.
Gray's general durable power of attorney gave Daughter the authority to enter the
Arbitration Agreement—and the other admission documents—on Gray's behalf.
See Hackworth v. Bayview Manor, 2023-UP-096 (S.C. Ct. App. filed March 15,
2023), reh'g denied (June 5, 2023), cert. denied (March 24, 2024) (reversing and
remanding for arbitration where general durable power of attorney gave signer
authority to enter agreements on the patient's behalf); Arredondo, 433 S.C. at
75-76, 856 S.E.2d at 554 (emphasizing the analysis of whether a party has been
granted authority to enter an arbitration agreement on behalf of another "does not
turn upon the presence or absence of an explicit reference to arbitration or
arbitration agreements in the powers of attorney").
The circuit court's alternate holding does not permit a different result. In the order
denying the motion to compel arbitration, the circuit court found:

[E]ven if Daughter had actual or apparent
authority/agency to sign the Arbitration Agreement on
behalf of Decedent, the Arbitration Agreement is
unenforceable against the Decedent's wrongful death
statutory beneficiaries under South Carolina contract law
defenses. The Arbitration Agreement neither covers the
wrongful death statutory beneficiaries' claims within the
scope of the agreement nor was the Agreement signed by
an individual who had authority to bind the statutory
beneficiaries.

We are unclear what "contract law defenses" are referenced here, and no case or
statutory provision is cited in the order. However, in Dean v. Heritage Healthcare
of Ridgeway, LLC, our supreme court explained "courts may not refuse to compel
arbitration simply because a wrongful death claim is involved." 408 S.C. 371, 378
n.3, 759 S.E.2d 727, 731 n.3 (2014) (citing Marmet Health Care Ctr., Inc. v.
Brown, 565 U.S. 530 (2012) (per curiam) (invalidating West Virginia's policy of
refusing to refer wrongful death claims against a nursing home to arbitration)). 4

Conclusion

For the foregoing reasons, the circuit court's order denying Appellants' motion to
dismiss and compel arbitration is

REVERSED AND REMANDED. 5

THOMAS and HEWITT, JJ., concur.

4
We find Respondent's preservation challenge on this point lacks merit.
Appellants argued Dean to the circuit court at the hearing on their motion to
dismiss and compel arbitration, and they cite Dean throughout their briefing in
support of their position on appeal. Citing Dean and Marmet, Appellants further
argue in their initial brief that the circuit court's "secondary ruling directly conflicts
with South Carolina state law as well as federal law related to this issue."
5
We decide this case without oral argument pursuant to Rule 215, SCACR.