AARP’s briefs in two cases argue that signing a health care proxy regarding end-of-life decisions does not waive a nursing home resident’s right to have a jury decide his or her case.
In 2011, Stephanie Johnson Leslie and Barbara Johnson – co-administrators of the estate of Dalton Johnson – filed a wrongful death lawsuit against the nursing home in which Dalton Johnson had resided. Defendants moved to dismiss the proceedings based on a clause in his nursing home admission contract that sent all disputes to arbitration, and a trial court agreed.
Plaintiffs argue that although Dalton Johnson had signed a health care proxy that was to govern specific medical decisions regarding end-of-life options, he had not given away his decision-making authority about all contracts. Specifically, he had not authorized anyone other than himself to make decisions about whether to obligate himself to arbitrate future disputes. Arbitration is a dispute resolution mechanism designed for business-to-business transactions and it does not provide the same public scrutiny, right to a jury trial, right to access evidence, adherence to precedence and other procedural protections lawsuits do; it can also be significantly more expensive.
Similarly, Rita Lacita suffered from Alzheimer’s and was admitted to a nursing facility run by GGNSC Malden Dexter. Her son admitted her to the hospital and while there signed the paperwork discharging her to GGNSC without fully understanding what he was signing and believing that if he did not sign all the documents the facility would not admit his mother. When he sued for wrongful death, that trial court found that the Massachusetts health care proxy statute permits agents only to make health care decisions, and the scope of that role did not include the authority to waive the right to seek legal redress in court.
The two disputes are now on appeal. Attorneys with AARP Foundation Litigation filed AARP’s friend-of-the-court briefs in both cases in conjunction with the National Academy of Elder Law Attorneys, arguing that signing a health care proxy is vastly different from signing over all legal rights. In particular, the right to a jury trial for disputes is a fundamental individual right enshrined in the state constitution that could not be waived ambiguously.
The briefs parse the words in enabling statute to point out that a proxy is clearly intended to be narrowly defined to decisions about health care treatment, and the briefs review the legislative history to point out that the Massachusetts legislature carefully considered the scope of duties allocated in a health care proxy and deliberately narrowed these powers.
Finally, the briefs note the dangers of mandatory arbitration, particularly in the context of nursing home admissions. By its very nature a nursing home admission almost always represents a time of crisis for the patient and his/her family where the dominant concern is securing medical treatment and it is not an appropriate time for patients or families to be asked to waive constitutional rights.
What’s at Stake
In planning for incapacity and surrogate decision making, people consider who will be suited and qualified to make specific and separate decisions in the event of incapacity – decisions regarding financial matters are different from health care matters and require different skill sets. Merely designating a qualified health care agent does not indicate this person is intended to combine both roles. If a health care proxy is regarded as tantamount to a power of attorney for all affairs, people will be left at tremendous risk of signing away significant rights while assuming they are merely designating a medical decision maker.
Johnson v. Kindred and Licata v. GGNSC Malden Dexter are both before the Appeals Court of the Commonwealth of Massachusetts.