Barrow v. Dartmouth House Nursing Home, Inc., et al. (Lawyers Weekly No. 11-095-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   13-P-1375                                       Appeals Court   SCOTT R. BARROW, executor,[1]  vs.  DARTMOUTH HOUSE NURSING HOME, INC.,[2] & others.[3] No. 13-P-1375. Essex.     April 8, 2014.  –  August 18, 2014. Present:  Kafker, Brown, & Sikora, JJ. Nursing Home.  Arbitration, Parties, Stay of judicial proceedings, Confirmation of award.  Contract, Arbitration, Parties, Validity, Third party beneficiary.  Agency, Scope of authority or employment.  Health Care Proxy.  Estoppel.  Practice, Civil, Stay of proceedings.       Civil action commenced in the Superior Court Department on May 26, 2010.   The case was heard by Robert A. Cornetta, J.   John Vail, of the District of Columbia (David J. Hoey with him) for the plaintiff. Tory A. Weigand (Noel B. Dumas with him) for the defendants.     KAFKER, J.  The enforceability of arbitration agreements signed on behalf of family members being assisted in the nursing home admission process has been the subject of a recent constellation of cases.  See, e.g., Miller v. Cotter, 448 Mass. 671, 679-684 (2007); Johnson v. Kindred Healthcare, Inc., 466 Mass. 779, 781-789 (2014), and Licata v. GGNSC Malden Dexter LLC, 466 Mass. 793, 796-799 (2014).  Here, the plaintiff, Scott R. Barrow, signed such an arbitration agreement on behalf of his ninety-six year old mother, Elizabeth Barrow, as he helped her enter the Brandon Woods Long Term Care Facility (nursing home).  After she was allegedly beaten and strangled to death by her ninety-seven year old roommate, Scott[4] brought, in his capacity as executor of his mother’s estate, a multicount suit in Superior Court.[5]  The Superior Court judge ordered all claims to arbitration.  The arbitrator decided all claims in favor of the defendants, and Scott appealed on the grounds that the arbitration agreement was unenforceable. We agree that the arbitration agreement was not enforceable and reverse the decision of the judge compelling arbitration.  Scott did not have a durable power of attorney.  Nor was he acting as his mother’s guardian or conservator.  A health care proxy, as the Supreme Judicial Court has previously held, is insufficient to authorize the health care agent to sign an arbitration agreement.  There was no evidence or suggestion that Scott’s mother specifically authorized him to sign the arbitration agreement.  The agreement, by its express terms, was not a requirement of admission to the nursing home.  We also conclude that Scott did not sign the arbitration agreement in his individual capacity and […]

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