When Massachusetts passed a law making it easier for family members to make health care decisions for their incapacitated relatives, it did not authorize family members to make decisions about litigation, CCL’s John Vail told the Massachusetts Supreme Judicial Court in a brief filed today.

Dalton Johnson gave his wife, Barbara, a proxy allowing her to make “health care decisions” if he became incapacitated.  At issue in the case is whether that proxy gave her authority to bind him to an arbitration clause she signed when arranging nursing home care for him, before there was any dispute about his care.

The Massachusetts statute at issue limits “health care decisions” to decisions consistent with good medical practice.  This excludes arbitration, Vail’s brief told the court, because it is not medical practice.  The brief noted that predispute arbitration clauses like the one here have, in fact, been condemned by the medical profession.  

The plaintiffs are represented, in addition to Vail, by David J. Hoey and Nicole Paquin of North Reading, MA.  The case is Johnson v. Kindred Healthcare, Inc.  Oral argument has not yet been scheduled.