Arbitration Agreement Does Not Apply to Wrongful Death Claim Against Nursing Home

by David Cosgrove

In September of 2007, Dalton Johnson was admitted to the Braintree Manor Rehabilitation and Nursing Center. The Center was owned by Kindred Healthcare, Inc. Two years earlier, Dalton executed a health care proxy that designated his wife Barbara as his Health Care Agent. It was in that capacity that she executed an agreement with the nursing home that included mandatory mediation and arbitration provisions.

In July of 2009 Dalton died from burns he suffered in the nursing home. His Estate subsequently brought a claim against the home, its national owner, and the home’s operator. The claim, filed in Massachusetts state court, sought damages for negligence under that state’s wrongful death statute.

Barbara’s healthcare proxy empowered her to make “health care decisions” on Dalton’s behalf. When the defendants sought to compel arbitration, Dalton’s Estate claimed that Barbara’s execution of the agreement with the nursing home did not fall within the parameters of the proxy’s delegated “health care decision.” The Superior Court disagreed and stayed the court proceedings pending the conclusion of mediation and, if necessary, arbitration. The Estate appealed that decision.

Just last month the Supreme Judicial Court of Massachusetts reversed the Superior Court. The Court held that the “decision” to enter the arbitration agreement was not a health care decision, and therefore Dalton, and as such his Estate, were not bound by the agreement. In doing so, it relied upon the fact that the Massachusetts health care proxy statute does not authorize a proxy to enter into any type of dispute resolution agreement on its principle’s behalf. That conclusion required the Court to interpret the meaning and scope of the statute’s definition of a “health care decision.” The Court set forth a variety of justifications of its arguably narrow interpretation of that term, including similar interpretations by courts in such states as Florida, Kentucky, Georgia, Illinois, and Nebraska. The Court acknowledged but distinguished a contrary holding by the Supreme Court of Tennessee.

I found it interesting that, setting aside the language of the proxy statute, there was no discussion of the implications of common law apparent agency. Law firms that represent Estates and the victims of gross negligence as does my firm need to review this case, as do those representing nursing homes or drafting health care proxies.


David Cosgrove previously served as an Assistant District Attorney, Assistant Attorney General, and Special Assistant United States Attorney in Massachusetts. He remains licensed to practice law in that state. Several years ago he served as a special prosecutor in a massive criminal negligence trial of a nursing home in which several of its patient has died from decubitus ulcers (bed sores).