Last week, in Johnson v. Kindred Healthcare, Inc., et al., the Massachusetts Supreme Judicial Court addressed an important case involving the use of arbitration agreements by nursing home facilities and the ability of health care agents to enter into such agreements on behalf of a patient.

By way of background, many nursing and long-term care facilities require that a resident/patient agree to arbitrate disputes arising from the care or treatment at a facility as a precondition to the resident’s stay. Arbitration clauses, which are often enforceable, effectively waive an individual’s right to bring a dispute in court in front of a jury. Under Massachusetts law, a patient may appoint someone, a “health care agent”, whom he or she trusts, to make health care decisions on his or her behalf. According to the statute governing health care proxies, M.G.L., ch. 201D, §5, a health care agent may “make any and all health care decisions on the principal’s behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the health care proxy.” At issue in the Johnson case was whether or not the decision to enter into an arbitration agreement constituted a “health care decision” within the meaning of the statute.

The plaintiffs in this case were the administrators of the estate of Dalton Johnson. Prior to his admission to the defendants’ nursing home, Mr. Johnson had executed a health care proxy and named his wife as his health care agent. Shortly after her husband first entered the defendants’ facility as a resident, Mrs. Johnson signed an arbitration agreement while acting as her husband’s health care agent. During the course of his care at the nursing home, Mr. Johnson was badly burned and later died as a result of his injuries. The plaintiffs filed a wrongful death/personal injury lawsuit against the defendants (who included owners, operators, and employees of the nursing home), alleging that they were negligent and responsible for Mr. Johnson’s death. The defendants thereafter sought to enforce the arbitration agreement.

The plaintiffs argued that the arbitration agreement Mrs. Johnson had signed was not a “health care decision” under Massachusetts law, and though she was authorized to make health care decisions for her husband, Mrs. Johnson had no authority to enter into the agreement on her husband’s behalf. The defendants argued that, under the health care proxy statute, “health care decisions” should be broadly defined and should include the ability to decide whether to enter into an arbitration agreement to resolve disputes. A Superior Court judge held that Mrs. Johnson’s decision to enter into an arbitration agreement was a health care decision, and was binding. The plaintiffs appealed and the Massachusetts Supreme Judicial Court reversed the lower court’s decision.

The Supreme Judicial Court held that the decision to enter into an arbitration agreement with the nursing home was not a “health care decision” covered by the health care proxy statute. Specifically, the Court held that the statute authorizes a health care agent to make only “those decisions requiring a principal’s informed consent to a medical treatment, service, or procedure,” but not “all decisions that the principal could have made if competent, even those that might bear some relationship to the receipt of medical services”. The Court ruled that Mrs. Johnson’s standing as her husband’s health care agent did not grant her the legal authority to enter into the arbitration agreement with the nursing home. The ruling allows the plaintiffs to move forward with their case in Superior Court and have their claims decided by a jury.

The law surrounding the liability of health care providers is complex and constantly changing. The attorneys at SUGARMAN have a long history and extensive experience in dealing with medical malpractice and nursing home negligence cases. If you or a family member have been injured as a result of medical treatment and wish to speak to one of our personal injury attorneys regarding your options, please fill out a Contact Form, e-mail us at, or call us at (617) 542-1000.