A survival action against a nursing home over the death of a resident cannot be severed from a wrongful-death action in the same lawsuit and sent to arbitration, the Superior Court has ruled in an opinion that expressed reluctance about being bound by precedent set in 2015.
A unanimous panel ruled Jan. 25 in Burkett v. St. Francis Country House that the nursing home could not compel arbitration in the survival action and the claims must be consolidated for trial. But the panel noted that it was constrained to do so by last year’s ruling from a different panel in Taylor v. Extendicare Health Facilities, which, it said, opined that wrongful-death and survival actions are identical. The Burkett court disagreed and noted other Pennsylvania court decisions allowing bifurcation. The state Supreme Court has granted allocatur in Taylor.
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