Licata v. GGNSC Malden Dexter LLC

• Decision Date: 14 March 2012
• Docket Number: SUCV2011-02815-A.
• Parties: Salvatore LICATA, Jr., administrator [1] v. GGNSC MALDEN DEXTER LLC.
• Court: Massachusetts Superior Court

Salvatore LICATA, Jr., administrator ^[1] v. GGNSC MALDEN DEXTER LLC.

No. SUCV2011-02815-A.

Superior Court of Massachusetts, Suffolk County.

March 14, 2012

FINDINGS OF FACT, RULINGS OF LAW ON AND ORDER ON DEFENDANT GGNSC MALDEN DEXTER LLC'S MOTION TO DISMISS COMPLAINT AND COMPEL ARBITRATION

PAUL E. TROY, Justice.

On August 1, 2011, Salvatore Licata (" Licata"), as the administrator of his mother Rita's estate, filed this wrongful death action against GGNSC Malden Dexter LLC d/b/a Dexter House Nursing Home (" GGNSC"), alleging that in August of 2008, the nursing home's negligence resulted in personal injuries to Rita which caused her death on August 10, 2009. The complaint alleges wrongful death resulting in conscious pain and suffering, negligent violation of state and federal regulations governing long term health facilities, breach of contract, and violations of G.L. c 93A.

On October 7, 2011, GGNSC filed this Motion to Dismiss Complaint and Compel Arbitration based on an arbitration agreement executed by Licata when Rita was admitted to the nursing home. By Order dated December 15, 2011, this Court (Connors J.) ordered an evidentiary hearing with respect to the enforceability of the arbitration agreement. This Court conducted such a hearing on January 30, 2012. Based on all the credible testimonial and documentary evidence and the reasonable inferences to be drawn from that evidence, the court finds the following facts.

FINDINGS OF FACT

On August 18, 2008, Rita was admitted to the Metro West Medical Center Geropsychiatric Treatment Unit in Natick for evaluation of increased confusion with increased lability behavioral disturbance with wandering, pacing, increased restlessness and unsafe behaviors, poor insight and judgment, and poor safety awareness. Licata was listed on the admission form as her next of kin. The next day, Rita executed a Massachusetts Health Care Proxy appointing Licata as her health care agent and stating, in relevant part:

My Agent shall have the authority to make all health care decisions for me, including decisions about life-sustaining treatment, subject to any limitations I state below, if I am unable to make health care decisions myself. My Agent's authority becomes effective if my attending physician determines in writing that I lack the capacity to make or to communicate health care decisions.

Rita's treating physician, Dr. Helen Kyomen, diagnosed her with delirium related to multiple conditions including increased pain from left foot ulceration and right foot cellulitis, and dementia of the Alzheimer type.

On August 22, 2008, Rita was discharged from the hospital and transferred to the nursing home with a diagnosis of delirium-resolving and dementia of the Alzheimer type with behavioral disturbance. The discharge summary authored by Dr. Kyomen states that during Rita's stay in the hospital, " Insight and judgment were chronically impaired." On the discharge form, in the line for patient signature, Dr. Kyomen wrote, " unable to sign." Licata was the only one available to drive Rita to the nursing home and admit her, because Rita's husband is illiterate. Licata had admitted Rita to hospitals in the past but this was the first time he dealt with the Medicare nursing home process. Licata and Rita arrived at the nursing home at 10:20 p.m. and Rita immediately was taken to her residential room. The nursing home admissions director at the time, Rose Ann Meagher (" Meagher"), took Licata into an office to fill out the necessary admissions paperwork. At some point during the admission process, Meagher went into Rita's room, which was only a short distance away, and told Rita that Licata was signing some papers for her and would discuss them with her later. Rita did not appear to understand and did not respond. The nursing home's practice is to have the patient sign the documents if he or she is alert and able to do so; otherwise, a family member is asked to sign. Meagher filled out all Rita's paperwork, document by document, explained each one to Licata, and then showed him where to sign. Licata is not sophisticated in such matters and signed all of the paperwork without fully understanding the contents because he believed he had to sign every document in order for Rita to be admitted. He was given a copy of all the documents after his mother was admitted. Licata never told Meagher that he was Rita's guardian or that he had a power of attorney to act for her.

One of the documents signed by Licata is an Admission Agreement. On the Admission Agreement Signature Page, Licata signed his name on the line designated " Name of Resident's Legal Representative" rather than on the line designated " Name of Resident's Agent." However, immediately below his signature is a section instructing him to check off the " Type of Legal Representative, " with boxes for Conservator of Person, Conservator of Estate, Guardian, Durable Power of Attorney for Health Care, or Agent Acting Under General Power of Attorney. Neither Licata nor Meagher checked any of these boxes.

Licata initialed and signed certain documents as Rita's " Authorized Representative" but refused to sign a section authorizing automatic credit card payments to the nursing home. Meagher wrote in the margin, " NO." Licata signed an Immunization Consent or Refusal and a health insurance benefits assignment form as a " Responsible Party." He signed a Medicare Secondary Payer Screening Form and a Prescription Drug Coverage Profile as the " Resident Representative." Although Licata signed a MassHealth Permission to Share Information Form as " someone who has the legal authority to act on behalf of the applicant/member, " the form required that the authorizing legal documents be attached in the case of guardianship, power of attorney, or health-care proxy, and no such documents are attached. Licata signed a Written Acknowledgment Form: Attorney General's Consumer Protection Regulations: 940 CMR 4.00 as " Next of Kin Resident" rather than " Legal Representative of Resident."

Licata signed a two-page document entitled, " RESIDENT AND FACILITY ARBITRATION AGREEMENT" (" the Agreement"). Immediately below the title, the document states in bolded letters: " (NOT A CONDITION OF ADMISSION-READ CAREFULLY)." ^[2] The Agreement states in relevant part:

It is understood and agreed by Facility and Resident that any and all claims, disputes, and controversies (hereafter collectively referred to as a " claim" or collectively as " claims") arising out of, or in connection with, or relating in any way to the Admission Agreement or any service or health care provided by the Facility to the Resident shall be resolved exclusively by binding arbitration to be conducted at a place agreed upon by the Parties, or in the absence of such an agreement, at the Facility, in accordance with the National Arbitration Forum Code of Procedure, which is hereby incorporated into this Agreement, and not by a lawsuit or resort to court process. This Agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.

This Agreement to arbitrate includes, but is not limited to any claim for payment, nonpayment, or refund for services rendered to the Resident by the Facility, violations of any right granted to the Resident by law or by the Admissions Agreement, breach of contract, fraud or misrepresentation, negligence, gross negligence, malpractice, or claims based on any departure from accepted medical or health care or safety standards, as well as any and all claims for equitable relief or claims based on contract, tort, statute, warranty, or any alleged breach, default, negligence, wantonness, fraud, misrepresentation, suppression of fact, or inducement ...

... In the event a court having jurisdiction finds any portion of this agreement unenforceable, that portion shall not be effective and the remainder of the agreement shall remain effective.

It is the intention of the parties to this Arbitration Agreement that it shall inure to the benefit of and bind the parties, their successors, and assigns, including without limitation the agents, employees and servants of the Facility, and all persons whose claim is derived through or on behalf of the Resident, including any parent, spouse, sibling, child, guardian, executor, legal representative, administrator, or heir of the Resident. The parties further intend that this agreement is to survive the lives or existence of the parties hereto ...

... THE PARTIES UNDERSTAND AND AGREE THAT THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES, AND THAT BY ENTERING INTO THIS ARBITRATION AGREEMENT, THE PARTIES ARE GIVING UP AND WAIVING THEIR CONSTITUTIONAL RIGHT TO HAVE ANY CLAIM DECIDED IN A COURT OF LAW BEFORE A JUDGE AND A JURY, AS WELL AS ANY APPEAL FROM A DECISION OR AWARD OF DAMAGES.

The Resident understands that (1) he/she has the right to seek legal counsel concerning this Arbitration Agreement, (2) that execution of this Arbitration Agreement is not a precondition to admission or to the furnishing of services to the Resident by the Facility, and (3) this Arbitration Agreement may be rescinded by written notice to the Facility from the Resident within thirty days of signature ...

... The undersigned certifies that he/she has read this Arbitration Agreement and that it has been fully explained to him/her, that he/she understands its contents, and has received a copy of the provision and that he/she is the Resident, or a person duly authorized by the Resident or otherwise to execute this agreement and accept its terms.

The Resident signature line is blank. Below it is the statement: " If the resident is unable to consent or sign this provision because of physical

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