In 2006, Scott Barrow admitted his mother at a nursing home in Massachusetts. As part of the admission process, Scott filled out various paper work including consents for treatments, a physician consent, and a resident and facility arbitration agreement. Around the same time his mother was admitted to the facility, she signed a health care proxy that designated her son to be her health care agent. At no time was Scott ever a power of attorney over his mother. Under M.G.L. c. 201D § 5: An agent shall have the authority to make any and all health care decisions on the principal’s behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the health care proxy.
Three years later, Ms. Barrows roommate at the facility attacked her and put a plastic bag over her head causing her death. Scott filed a wrongful death action against the nursing home alleging that the roommate demonstrated a propensity for violence on numerous occasions while his mother was a resident at the nursing home. Additionally, Scott claimed that due to the nursing home’s failure to address the violent tendencies of the roommate, his mother was caused to sustain a gruesome death.
After suit was filed, an attorney for the defense moved to compel arbitration of the issues based on the document that was signed by Scott for his mother’s admission to the nursing home facility. Put differently, the defense argued that the estate of Ms. Barrows waived any and all right to a trial by jury based on the signing of the arbitration agreement when Ms. Barrows was being admitted to the facility. A judge agreed with the defense and an arbitration followed. Once at arbitration, the arbitrator determined that there had been no wrong doing on part of the nursing facility. As a result, the claims against the facility were dismissed and the estate of Ms. Barrows was without recourse. The estate of Ms. Barrows appealed the original decision of the court that compelled arbitration. Continue reading →