There may be an upcoming appellate court decision which will have an in impact on Massachusetts wrongful death cases against hospitals and nursing homes in Massachusetts. In a case just appealed by a nursing home in Malden, GGNSC Malden Dexter, there is an attempt to use the Massachusetts Health Care Proxy as a sward for hospitals to enforce binding arbitration agreements.
Here is what happened: when Mrs. Rita Licata became too ill to care for herself, she was admitted to the local hospital for evaluation. She was suffering from Alzheimers, dementia and was confused. At the hospital she signed a Massachusetts Health Care Proxy, giving her son, Salvatore, her proxy to make health decisions if her doctors declared in writing that she was unable to. After four days, Ms. Licata was discharged to the defendant nursing home. While she was found to have “chronically impaired” insight and judgment, there was no specific determination of a need for her Proxy to made a decision. Ms. Licata was admitted to Malden Dexter and her son filled out the forms.
Of necessity, he thought, he signed them all. One of the forms was an Agreement to Arbitrate. That is, an agreement that if Mrs. Licata had any legal claims against the nursing home, she was giving up her right to a jury, giving up her right to a court trial, and agreeing to arbitrate under rules that are very different. Mr. Licata was not appraised of what rights he was signing away, nor was he advised of what was necessary to sign and what was optional. He was thinking only of his mother’s immediate care.
Unfortunately, Ms. died at Malden Dexter, and the reason is alleged to be the facilities negligence.
Mr. Licata, through his Massachusetts wrongful death lawyer, filed a lawsuit against Malden Dexter. They filed a motion to dismiss the case be arbitrated because of the signed Arbitration Agreement. The hearing on the motion resulted in the Massachusetts Superior Court Judge agreeing with the Licata family: this case should be heard in court, not by arbitration.
The Court’s reasoning was quite clear. First, the court held that it was not clear that the Health Care Proxy was valid because there was no specific finding by Ms. Licata’s doctors that she was not able to make decisions. In fact, it wasn’t until weeks later, when the Malden Dexter doctor executed the Health Care Proxy required document under Massachusetts General Laws, Chapter 210D. But, more importantly, the court held that the health care proxy that Ms. Licata signed was not a power of attorney. That is, it was not a document that authorized her son to make legal decisions for her, but medical decisions. This is the distinction that seems important in the upcoming appeal.
The court in this case said the Health Care Proxy does not create an “agency relationship” in which that the agent, the son, will act on behalf of the principal, the mother, subjecting the principal to make “purely legal decisions” including waiving her rights to a jury trial.
It is not clear how broad the Appeals Court will make their decision. They could find very narrowly that in this case the Health Care Proxy was not activated in a timely fashion for the signing of the Arbitration Agreement. They could give a broader finding that the Massachusetts Health Care Proxy is not a sufficient legal document to waive legal rights, but simply a medical authorization document. Our reading of MGL Chapter 210D, Section 5, regarding the “authority of agent” is that it is limited to “health care decisions” such as “life sustaining treatment.” The law talks about doctors, patients, and medical information but nothing about any legal rights, or the constitutional rights to a jury trial.
For more information about cases regarding wrongful death in Massachusetts please see our articles onWrongful Death.