Wrongful death claim cannot be arbitrated

I waas quoted in this weeks Lawyers Weekly article on Arbitrations in the nursing home context. In an article by Eric T. Berkman, an attorney and freelance writer for Massachusetts Lawyers Weekly, Published Wed, April 25, 2012

A mandatory arbitration agreement that a man signed on his mother’s behalf when she was admitted to a nursing home did not bar his wrongful death suit against the facility, a Superior Court judge has ruled. Judge Troy's ruling essentially voided an arbitration agreement that had been signed by a health care proxy. The judge found that a health care proxy exceeded his permissable authority by signing away the residents right to a jury trial.
The defendant nursing home had argued that the plaintiff was authorized to sign the arbitration agreement under a health care proxy executed by his mother before she was transferred to the facility and thus the agreement was enforceable.

“Under [Chapter 201D, the Massachusetts Health Care Proxy Act], an agent has authority to make ‘any and all health care decisions on the principal’s behalf that the principal could make,’” Troy said in denying the defendant’s motion to compel arbitration. “However, in the view of this court, a waiver of the principal’s legal right to seek redress in court for improper medical treatment does not fall within the statutory definition of a health care decision.”

The 17-page decision is Licata v. GGNSC Malden Dexter LLC, Lawyers Weekly No. 12-066-12. The full text of the ruling can be ordered by clicking here.

Bernard Hamill, an attorney in Quincy who represents plaintiffs in nursing home negligence and abuse cases, welcomed Troy’s ruling.
“Think of it in terms of common sense,” said Hamill, who was not involved in the case. “A health care proxy could never bring a lawsuit [on behalf of a nursing home resident], so why on earth would one be deemed valid enough to waive the ability to bring a lawsuit? That would make no sense.”
Hamill was also gratified that the judge seemed to recognize the reality facing people in the plaintiff’s situation.
“You have a nervous family member sitting down in an admissions office with a huge stack of documents, trying to get their loved one admitted for their own safety. And frequently it’s the only nursing home to accept the candidate,” he said. “Someone in that situation is not going to be reading every document, questioning them and refusing to sign things.”
If nursing homes do not want arbitration agreements challenged, they should not make them part of the admissions process, Hamill added.
“Why not make it truly separate and send it out several days later when the [person acting on the patient’s behalf] isn’t in an emotional state, trying to get their loved one admitted?” he said.