“Arbitration is not health care,”  CCL’s John Vail told the Massachusetts Supreme Judicial Court yesterday, urging it not to enforce an arbitration agreement signed by a person authorized to make health care decisions for a nursing home resident whose death allegedly was caused by the nursing home’s  neglect.

An active bench peppered Vail and opposing counsel with questions.  In response to one, Vail noted that deciding when a patient gets mail, or what he eats, are, unlike arbitration, necessary incidents of providing health care to an incompetent person in a residential setting.  Illustrating her point that it was questionable whether a health care proxy had even the power to use the principal’s money to pay health care bills, one Justice asked Vail’s opponent whether a proxy was empowered to sell a principal’s house to pay them.   No cogent answer came forth.

The Court, which recently issued two opinions finding that prior decisions about arbitration were pre-empted under recent Supreme Court decisions, speculated about whether the Federal Arbitration Act would permit it to treat paying bills as within the scope of the health care proxy but agreeing to arbitration as outside the scope.

The plaintiffs in Johnson v. Kindred Healthcare, Inc., are represented, in addition to Vail, by David J. Hoey of North Reading, MA.  The case was consolidated for argument with Licata v. GGNSC Malden Dexter, LLC.  A decision is expected within 130 days.