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Nursing Home Arbitration Agreements

to-sign-a-contract-3-1221952-mAs previously discussed, the Wrongful Death statute in Massachusetts allows for the Personal Representative of an Estate to commence an action for damages against a Defendant for his or her negligence which causes death. In the past few years, issues have arisen as to whether such a law suit can commence when the person who has died (the decedent), or their representative, has previously signed an agreement with the Defendant that limits court actions in favor of binding arbitration. The Supreme Judicial Court of Massachusetts has recently had an opportunity to decide this very issue in Johnson v. Kindred Healthcare, Inc., as well as a slew of companion cases.

In the Johnson matter, Dalton Johnson was admitted to a nursing care facility operated by the Defendant organization. Prior to his admission at the nursing facility, he had executed a health care proxy which authorized his wife to act as his “health care agent” relating to “health care decisions.” In her capacity as Health Care Proxy, the wife of Mr. Johnson admitted him into the facility for long term care and treatment. As part of the admission process, she was asked to sign an agreement with the Defendant to submit any disputes that arise between the parties for resolution by mediation and/or arbitration (often referred to as an “arbitration agreement.”) Approximately one year later, Mr. Dalton suffered severe burns and was taken to a hospital where he succumbed to his injuries. The wife of Mr. Dalton brought suit against the Defendant claiming a variety of claims predicated on Wrongful Death.

The Defendant Nursing Facility asked the court to dismiss the case and enforce the arbitration agreement. The Defense argued that the arbitration agreement was valid because the agreement to arbitrate and mediate claims surrounded a health care decision- within the power of the Health Care Proxy to execute. The Plaintiff, in opposition, argued that the wife as Healthcare Proxy did not have the authority to execute the arbitration agreement because it did not concern a health care decision. Because of this, the Plaintiff argued, the arbitration agreement was not valid and a lawsuit could and should commence in a court of law.

The Supreme Judicial Court looked to the genesis of the Health Care Proxy statute, M.G.L. c. 201D. The statute defines ‘health care’ as, “any treatment, service or procedure to diagnose or treat the physical or mental condition of a patient,” and ‘health care decision’ as “a decision which is made in accordance with the requirements of this chapter, is consistent with any limitations in the health care proxy, and is consistent with responsible medical practice.”

The court made a distinction between a health care proxy and a power of attorney (of which, the wife was not). A health care proxy makes decisions relating to health, care, and treatment whereas a power of attorney makes decisions that can effect legal standing, such as waivers and releases. The court held that the Legislature did not intend the term ‘health care decision’ to include the decision to waive a person’s right of access to the courts and to trial by jury by agreeing to binding arbitration. As such, the court ordered that the case for Wrongful Death against the Nursing Home may continue and the parties are not required to go to binding arbitration as the agreement is not valid.

To read more on the above referenced case, please see Johnson v. Kindred Healthcare, Inc..  If you believe you have a medical malpractice or nursing home litigation case, our office can help you. To schedule a free consultation with lawyer Daniel Cappetta, call our office today at (508) 969-9505 or fill out or contact form available on the right side of this page.

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