The state’s highest court, the Supreme Judicial Court, heard oral argument in early September in two cases — Johnson v. Kindred Healthcare and Licata v. GGNSC Malden Dexter LLC — involving wrongful death claims against nursing homes. Both cases present the issue of whether a health care agent under a health care proxy has the authority to agree to binding arbitration on behalf of a nursing home resident, thereby giving up their right to bring the claims in court.
During oral argument, the Justices focused on the question of whether an agreement to arbitrate could properly be characterized as a “health care” decision within the meaning of the state’s health care proxy statute. Counsel for the nursing homes argued that health care agents need to have broad authority in order to make arrangements for a nursing home admission, including decisions that were “incident” to health care. But when one of the Justices asked whether a health care agent who signed a nursing home admission agreement would then have the authority to sell the resident’s home in order to pay for the care, defense counsel had to do some backpedalling.
In support of their argument that the decision to arbitrate cannot be considered a “health care” decision within the authority of a health care agent, plaintiffs’ counsel referred to the legislative history set out in the amicus brief filed by the Massachusetts chapter of the National Academy of Elder Law Attorneys and AARP.
According to the Clerk’s office, the SJC has 130 days to issue a decision — stay tuned.