The agreement at issue in Buraczynski was between a physician and patient. Like here, the agreement was

1

presented to the patient at the time of treatment on a “take it or leave it” basis. Also as the case is here, had the patient

refused to sign the agreement, the physician would not have rendered medical care. 

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

June 5, 2007 Session

BRIDGETT HILL, ET AL. v. NHC HEALTHCARE/NASHVILLE, LLC, ET

AL.

 Appeal from the Circuit Court for Davidson County

No. 03C2808 Walter Kurtz, Judge

No. M2005-01818-COA-R3-CV - Filed April 30, 2008

FRANK G. CLEMENT, JR., J., concurring.

I concur fully with the determination that the arbitration provision is unconscionable and thus

unenforceable. My concurrence is based on the combined effect of the following facts, which I find

dispositive of the issue of unconscionability. One, the agreement afforded the nursing home an

unfair advantage in the arbitration process by requiring Ms. Hill to remit potentially exorbitant

arbitration fees in advance of any proceedings she commenced. Two, Ms. Hill was under a

compelling time constraint to execute the admissions agreement due to the fact she needed

immediate nursing home care. Three, the agreement did not afford her the option to subsequently

revoke the arbitration provision.

Although arbitration agreements between residents and nursing homes are permitted, see

Owens v. Nat’l Health Corp. et al, No. M2005-01272-SC-R11-CV, 2007 WL 3284669, ___ S.W.3d

___ (Tenn. Nov. 8, 2007), our courts have refused to enforce arbitration provisions when the

agreement requires the resident or patient to choose between a waiver of her right to go to court or

foregoing health care services if the agreement affords the health care provider an unfair advantage

in the arbitration process. See Buraczynski v. Eyring, 919 S.W.2d 314, 321 (Tenn. 1996).

1

The NHC agreement at issue required that Ms. Hill advance the cost of all arbitration fees

should she commence an arbitration proceeding to resolve essentially any dispute with NHC. The

record reveals the cost to arbitrate pursuant to the protocol specified in the agreement could be as

high as $18,000. Thus, Ms. Hill would have been required to advance as much as $18,000 to

commence the arbitration process. If she were unable to advance the arbitration fees, she would have

to abandon her legal remedies. Such an onerous requirement is shocking, especially in contrast to

the minuscule sum Ms. Hill would be required to advance to commence a civil action for the same

relief. 
In Philpot, the revocation provision was available to the resident of the nursing home for a period of ten days 2

from the signing of the agreement. Philpot, 2007 WL 4340874, at * 2.

NHC’s use of bold and enlarged font to direct the resident’s attention to the fact the agreement contained an 3

arbitration provision was done in a fashion very similar to that approved by the Supreme Court in Owens, 2007 WL

3284669 at *2, ___ S.W.3d ___. In Owens and here, the resident signed immediately below the section to expressly

acknowledge that the arbitration provision was purposefully disclosed prior to the resident executing the agreement.

In fact, Ms. Hill, her daughter and her son (who was her attorney-in-fact) all three signed to acknowledge the fact the

arbitration provision was expressly disclosed to them. 

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The other significant circumstance is that the agreement was signed by Ms. Hill under

compelling time constraints, and it did not afford her the right to revoke the arbitration provisions

within a reasonable period of time, as is the case in many nursing home admission agreements. As 2

the Court explained in Buraczynski, our courts are reluctant to enforce an arbitration agreement

between a patient and a health care provider if the agreement has the combined effect of requiring

the patient “to choose between forever waiving the right to a trial by jury or foregoing necessary

medical treatment,” and it affords the health care provider “an unequal advantage in the arbitration

process itself.” Buraczynski, 919 S.W.2d at 321. 

Although the revocation of such an agreement by a resident following admission to a nursing

facility may be problematic, see Philpot v. Tennessee Health Mgmt., Inc., No. M2006-01278-COAR3-CV, 2007 WL 4340874, at * 8 (Tenn. Ct. App. Dec. 12, 2007) perm. app. filed (Tenn. Feb. 11,

2008), the inclusion of a reasonable revocation provision in an adhesion contract is indicative of the

reasonableness of the agreement. Buraczynski, 919 S.W.2d at 320 (noting that the patient had not

immediately relinquished access to the courts, “but could revoke the agreements for any reason

within thirty days of its execution and regain that right”). This court reached the same conclusion

in Philpot, which hinged on the validity of a nursing home admission agreement, holding the

revocation provision in the arbitration and waiver of jury trial agreement enforceable based upon a

substantially similar arbitration provision to that at issue in Buraczynski. 

For the reasons stated above, I concur with the determination that the arbitration provision

is unconscionable and thus unenforceable. 

I, however, respectfully disagree with the emphasis placed on certain other facts. For

example, I do not place any significance on the fact the nursing home did not provide “a thorough

explanation” of the nuances of the arbitration provisions because no explanation was requested.

Moreover, I do not place any significance on the fact the agreement “contained no explanation of

binding arbitration, nor any language that would encourage the patient to ask questions about the

process.” 

As our courts have noted in recent opinions, the nursing home had an affirmative duty to

disclose the fact the agreement contained mandatory arbitration provisions. I submit NHC fulfilled

that duty by emphasizing the arbitration provision prominently in bold font set out in block

paragraph form as follows:

3
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By agreeing to arbitration of all disputes, both parties are waiving a jury trial

for all contract, tort, statutory, regulatory, and other claims.

. . . . 

I am in total agreement with the arbitration procedures described above in

Section H, including the use where applicable of the AAA Defined “ConsumerRelated Disputes.” The provisions of this Section II have been reviewed with

me prior to my signature below.

Ms. Hill, her son (who served as her attorney-in-fact), and her daughter all three signed

immediately below the arbitration section to acknowledge they were aware that arbitration was

required. Thus, there can be no dispute that they were aware the agreement contained an arbitration

provision. 

I also place no significance on the fact the nursing home did not provide a copy of all relevant

arbitration rules and the fact it did not provide internet access so Ms. Hill, her son or daughter could

study the arbitration rules and procedures incorporated in the agreement prior to signing the

agreement. As with any contract, if an uninformed party chooses to enter into an agreement without

sufficient knowledge of all terms and conditions of the agreement, that party is generally bound by

the agreement as written, regardless of the party’s level of understanding of all its provisions. 

The foregoing differences notwithstanding, I fully concur with the determination that the

arbitration provision is unconscionable and thus unenforceable.

___________________________________ 

FRANK G. CLEMENT, JR., JUDGE