The Massachusetts Appeals Court has ruled that an agent named in a health care proxy lacks authority to agree to arbitration on behalf of a nursing home resident in a wrongful death case. Barrow v. Dartmouth Nursing Home (Mass App. Court No. 13P-1375, August 18, 2014). The Court noted that the Supreme Judicial Court had recently defined the standards for authorizing arbitration agreements and distinguished them from other forms of agency authority, including those governing health care proxies and the signing of ordinary nursing home admission agreements. Johnson v. Kindred Health Care (Mass., No. SJC-11335, Jan. 13, 2014); and Licata v. GGNSC Malden Dexter LLC (Mass., No. SJC-11336, Jan 13, 2014) (Click here to learn more about the agreements).
According to the complaint in Barrow, the resident’s roommate had attacked her, beating, strangling and asphyxiating her by putting a plastic bag over her head. The nursing home moved to compel arbitration, arguing that, because the resident’s health care agent had signed an arbitration agreement, the claims must be determined by an arbitrator rather than by a jury. Following the holdings in Licata and Johnson, the Appeals Court held that the Massachusetts health care proxy statute reflected no intent to authorize agents to agree to arbitration and that a health care proxy alone is insufficient to authorize an agent to sign an arbitration agreement.
Nursing home residents who agree to arbitration upon admission to the nursing home waive their constitutional rights to a jury trial, including claims for serious injury, medical malpractice and wrongful death. In most cases, they have no idea they are giving up the right to a jury trial since the arbitration clause is part of a pile of papers the resident or her agent must sign upon adimission. There is no good reason for residents to “voluntarily” agree in advance to waive their rights to a jury trial: alternative dispute resolution is always an option once a dispute has arisen if the parties agree. Because the typical nursing home agreement requires a waiver of a fundamental constitutional right and deprives residents of the opportunity to have malpractice, wrongful death and other claims heard by a jury, residents and their agents should “just say no” to arbitration clauses in admission agreements.
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