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SJC says relatives cannot sue nursing homes for wrongful death of loved one if they sign arbitration agreements

In a closely watched case, the state’s highest court ruled Thursday that a relative of a nursing home resident who died from possible neglect cannot file a wrongful death lawsuit since the resident had signed an arbitration agreement with the nursing home.

In a unanimous ruling, the Supreme Judicial Court agreed with the nursing home industry that Massachusetts’ wrongful death law, enacted in 1840 and updated most recently in 1958, does not override arbitration agreements. When a resident waives their right to sue over negligence or death, that waiver extends to loved ones, the court held.

“Based on a plain reading of the wrongful death statute and our interpretation of common-law wrongful death actions over time, and in light of persuasive authority from other states, we determine that ... the arbitration clause in question is enforceable,” Justice David A. Lowy wrote for the court.


The federal First Circuit Court of Appeals had asked the SJC for its view on the intersection of the state’s wrongful death statute, arbitration agreements, and relatives who want to sue on behalf of a deceased nursing home resident.

According to court papers, Jackalyn Schrader had power of attorney for her mother, Emma Schrader, when the older woman moved into the Golden Living Center, also known as Heathwood, in 2013. The daughter signed several papers including an arbitration agreement that waived her right to sue.

Emma Schrader died in Dec. 3, 2013, after undergoing surgery for bed sores; she never recovered from the surgery, according to the court. Her daughter filed a wrongful death suit, but a federal court ruled she had no legal right to sue because of the arbitration agreement.

In the same vein, the SJC dismissed a civil lawsuit filed on behalf of a scuba diver who drowned off Gloucester while participating in a test dive of a new dry suit. The court said the diver, Gregg C. O’Brien, signed two waivers of his right to sue that is binding on his estate.


“The waivers the decedent signed control all claims for his wrongful death,” Lowy wrote. “The valid waivers signed by the decedent preclude the plaintiff, as his “executor or personal representative,” from bringing a lawsuit.”

In a friend of the court brief, AARP, the nation’s largest advocacy group for senior citizens, had urged the SJC to side with the daughter.

"Maintaining the right of beneficiaries to publicly litigate disputes when a loved one has died at the hands of a nursing facility is critical to filling the void left by a lack of enforcement activity,'' the group wrote. “Forcing next of kin to arbitrate wrongful death suits removes a critical source of information about quality of care in nursing facilities.”

But the Professional Liability Association, an organization of Massachusetts hospital and health care providers, said courts in other states have enforced arbitration.

"Agreements are enforceable provided that the agreement is executed by an authorized person and that it was not induced by fraud or undue influence and provided that it is not unconscionable,'' the association argued in an amicus brief.

John R. Ellement can be reached at Follow him @JREbosglobe.