In the first case, Dalton Johnson was admitted to a nursing facility operated by Braintree Nursing, LLC but before doing so he authorized his wife, Barbara Johnson as his health care agent. In her capacity as health care agent, Barbara signed an arbitration agreement with the nursing home. Two years later, while a resident of the nursing facility, Dalton suffered burns, was transferred to a hospital and later died as a result of those burns. Barbara filed a wrongful death suit against the nursing home and the nursing home argued that she was bound by the arbitration agreement she had signed on Dalton’s behalf. Barbara claimed that the health care proxy she had for Dalton gave her rights concerning decisions about a patient’s treatment by health care professionals but did extend to her ability to execute an arbitration agreement.
In the second case, Rita Licata was admitted to a nursing home and her son Salvatore Licata, Jr. was named as her health care agent Salvatore signed an arbitration agreement with the nursing home. Rita died after suffering personal injuries that resulted in her death. After Rita’s death, her estate sued the nursing home for wrongful death. The facility appealed, arguing that Salvatore had signed an arbitration agreement as the responsible party.
The court ruled that a health care agent’s decision to enter into an arbitration agreement is not a health care decision. Moreover, the court allowed that treating a medical record as a determination of incapacity and as notice to the principal that the proxy had been triggered deprived the principal of the right to object to its activation.
In considering both cases the court determined that the health care proxy statute did not reflect a decision that health care decisions included the decision to waive the principal’s right of access to the courts and to trial by jury. These sorts of cases can go either way. That’s why it’s important to have an elder law attorney who is familiar with how the same decision might go in his or her own jurisdiction so that documents can be drawn up to ensure that family members do not inadvertently sign away rights you may well need later on.
To read more about the two cases and the subsequent decision go here.
For more stories about Arbitration Agreements see below: