Court to hear wrongful death case earlier forced into arbitration

The son of a woman strangled to death by her roommate at a Massachusetts nursing home will have his case against the facility heard by a state court next month.  

Scott Barrow's mother was found strangled and suffocated with a plastic bag over her head at Brandon Woods, a nursing home in South Dartmouth, MA, in 2009. Her roommate, who had dementia, was charged with murder but deemed unfit to stand trial.

Barrow claims his mother's roommate had a “history of problems,” and should not have been allowed by the facility to live with another resident, according to a front-page story in the New York Times on Monday.

Barrow was barred from suing Brandon Woods in 2010 because his mother's admission contract, which he signed on her behalf, contained an arbitration clause. In 2014, a judge ruled in favor of Barrow, however, saying that although his mother designated him as her healthcare proxy, he did not have the authority to bind his mother to arbitration.

The trend of appeals courts throwing out arbitration agreements signed by nursing home residents' families, and not the residents themselves, is “catching on,” the NYT reported. One attorney told the NYT that lawyers are beginning to make “hyper-technical” arguments about the validity of arbitration clauses in nursing home admission contracts, in order to speak “the language of judges.”

Arbitration agreements have recently come under withering fire from a group of U.S. Senators, and even caused some discomfort among officials at the Centers for Medicare & Medicaid Services. The American Health Care Association noted the issue caused the most “angst” among its members in 2015.