A resident of a South Dartmouth nursing home was alive at the age of 100 to celebrate her birthday with her son and his three children. She was dead a month later, and it was not a natural death according to a recent New York Times article. Police said her roommate put a plastic shopping bag over her head and strangled and suffocated her to death. Her alleged assailant was 97 years old at the time of her death.
The alleged attacker was suffering from senile dementia, but the prosecutors decided to charge her with murder. Police never investigated the nursing home in connection with this tragic death, and that is part of the problem for the victim’s family. The nursing home has said the two women argued occasionally, as people do, but generally got along pretty well. With respect to the criminal case, the defendant was deemed not competent to stand trial and was committed to a state hospital.
Six years have passed since the tragic death, but victim’s son is still trying to hold the nursing home liable by claiming that the attacker should never have been living in the same room with victim. He tried to sue the nursing home in court the year following the death, but there was a binding arbitration clause in the residence contract that barred any party from going to a civil court should a dispute arise.
However, it should be noted that a binding arbitration provision is not always as ironclad as a nursing home would like you to believe. This means that your Boston personal injury attorney may be able to find an exception to the contract clause, though the facts of every case are different, and you should speak with your lawyer about your actual situation.
Victim’s son has been trying for years to get the case back into court, and it is believed he may now have a chance. The court in Massachusetts is expect to have a have a hearing on this issue involving binding arbitration that many think can have ramifications far beyond the wrongful death at issue in this matter.
At issue is the problem of giving an elderly citizen with possible dementia and an emotionally distraught family member a very complicated legal document to sign and no real opportunity to review the contract or understand the ramifications. They also do not understand the secretive nature of arbitration, and the cost of going to arbitration, which may fall on the family.
In this case, her son signed the paperwork, and he had a healthcare power of attorney at the time, giving him the right to make healthcare decisions on behalf of his mother. However, as his lawyers argue, this is not a general power of attorney that allows him to make legal decisions for his mother. Agreeing to binding arbitration is a legal decision and not a healthcare decision, and that is why he is asking the court to invalidate the provision. While previous attempts to beat these clauses have not worked when they focus on fundamental fairness of the provision, the contract authority argument is beginning to take hold in courts across the country.
If you are injured in an accident in Boston, call Jeffrey Glassman Injury Lawyers for a free and confidential appointment — (617) 777-7777.
Pivotal Nursing Home Suit Raises a Simple Question: Who Signed the Contract?, February 21, 2016, NYT, By Michael Corkery and Jessica Silver-Greenberg
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Wilkins v. City of Haverhill – Massachusetts Supreme Court Weighs Slip-and-Fall Claim, May 23, 2014, Boston Personal Injury Attorney Blog