GGNSC Administrative Services, LLC v. Schrader ( 2020 )

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SJC-12714
GGNSC ADMINISTRATIVE SERVICES, LLC, & others1 vs. JACKALYN M.
SCHRADER, personal representative.2
Suffolk. October 4, 2019. - February 27, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Nursing Home. Wrongful Death. Negligence, Nursing home,
Wrongful death. Arbitration, Appeal of order compelling
arbitration, Scope of arbitration. Consent. Uniform
Arbitration Act.
Certification of a question of law to the Supreme Judicial
Court by the United States Court of Appeals for the First
Circuit.
John Vail, of the District of Columbia (David J. Hoey also
present) for the defendant.
Joseph M. Desmond (Alex Harrington also present) for the
plaintiffs.
The following submitted briefs for amici curiae:
Jennifer A. Creedon for Massachusetts Defense Lawyers
Association.
1 Golden Gate National Senior Care, LLC; GGNSC Holdings,
LLC; GGNSC Chestnut Hill, LLC, doing business as Golden Living
Center -- Heathwood.
2 Of the estate of Emma J. Schrader.
2
Meryl D. Grenadier, William Avarado Rivera, & Kelly Bagby,
of the District of Columbia, Eric M. Carlson of California,
Steven Schwartz, & Rebecca J. Benson for AARP & others.
John J. Barter for Professional Liability Foundation, Ltd.
Robert E. Curtis, Jr., for Massachusetts Advocates for
Nursing Home Reform, Inc.
LOWY, J. After the decedent died in the care of a nursing
home, her daughter commenced a wrongful death action against the
nursing home notwithstanding the existence of an arbitration
agreement between the decedent and the nursing home. The United
States Court of Appeals for the First Circuit (First Circuit)
certified two questions to this court.3 The first question,
whether our wrongful death statute, G. L. c. 229, § 2, provides
rights to statutory beneficiaries derivative of or independent
from what would have been the decedent's own cause of action for
the injuries causing her death (decedent's action), informs the
underlying dispute about whether the decedent's arbitration
agreement binds the decedent's statutory beneficiaries of the
wrongful death action. The language of G. L. c. 229, § 2, and
our interpretation of the statute through its various iterations
convince us that the Legislature intended wrongful death actions
to be derivative of the decedent's action. To the extent that
the statute's derivative character does not answer the second
3 The United States Court of Appeals for the First Circuit
certified the questions to us pursuant to S.J.C. Rule 1:03, as
appearing in 382 Mass. 700 (1981).
3
certified question, whether the arbitration agreement is
otherwise enforceable, we conclude that, in the circumstances of
this case, the arbitration agreement does, indeed, control the
beneficiaries.4
1. Factual and procedural background. We recite the
undisputed facts as established by the United States District
Court judge in his decision granting the plaintiffs' motion to
compel arbitration under the Federal Arbitration Act.
Jackalyn Schrader brought the decedent, her mother, Emma
Schrader, to the Golden Living Center Heathwood (Heathwood) in
February 2013.5 Heathwood is part of a larger corporate
structure known as GGNSC. When Jackalyn brought the decedent to
Heathwood, an administrator handed Jackalyn a stack of
paperwork. Heathwood did not condition admission of the
decedent or caring for her upon the completion of all of the
documents, some of which, including an arbitration agreement,
were voluntary and clearly labeled as such.
4 We acknowledge the amicus briefs submitted by AARP, AARP
Foundation, National Consumer Voice for Quality Long-Term Care,
Justice in Aging, Center for Public Representation, and National
Academy of Elder Law Attorneys; Professional Liability
Foundation, Ltd.; Massachusetts Defense Lawyers Association; and
Massachusetts Advocates for Nursing Home Reform.
5 Because the decedent and the defendant share a last name,
we refer to Jackalyn by her first name.
4
The arbitration agreement pertained to Heathwood and the
"Resident." The agreement defined "Resident" as including "all
persons whose claim is or may be derived through or on behalf of
the Resident [the decedent], including any next of kin,
guardian, executor, administrator, legal representative, or heir
of the Resident, and any person who has executed this Agreement
on the Resident's behalf." Jackalyn is both the decedent's next
of kin and her personal representative as executor of her
estate. Following the decedent's admission to Heathwood,
Jackalyn signed the arbitration agreement. Jackalyn acted only
as power of attorney for the decedent and did not sign any
documents in her individual capacity.6
On December 3, 2013, the decedent died in Heathwood's care.
On February 4, 2016, Jackalyn brought a wrongful death action
pursuant to G. L. c. 229, § 2, in the Superior Court in her
capacity as the decedent's personal representative, alleging
that GGNSC negligently caused the decedent's death. The
complaint further alleged that the decedent's injuries were ones
"for which [the decedent] would have been entitled to bring an
6 As a matter of law, the decedent signed the agreement.
See Johnson v. Kindred Healthcare, Inc., 466 Mass. 779, 785
(2014), citing G. L. c. 190B, § 5-502.
5
action had she survived, and the right to bring such action
survives her."7
On March 15, 2016, GGNSC sued Jackalyn in the United States
District Court for the District of Massachusetts to compel
arbitration. Jackalyn opposed arbitration on two grounds.
First, she contended that the arbitration agreement was both
procedurally and substantively unconscionable. The Federal
District Court judge held that the arbitration agreement was
valid and not unconscionable.8
In the alternative, Jackalyn argued that the arbitration
agreement could not bind the decedent's beneficiaries because
they were not its signatories. In other words, Jackalyn claimed
that the arbitration agreement could not control the wrongful
death claim because the beneficiaries' claim under the wrongful
death statute was independent of the decedent's action and the
7 Specifically, Jackalyn claims that "preventable sacral
decubitus" (bedsores or pressure ulcers) resulted in the
decedent's pain and suffering, eventually requiring surgery,
from which the decedent never recovered.
8 Jackalyn also brought a negligence claim in the Superior
Court. The Federal District Court judge considered only the
wrongful death action, and on appeal to the First Circuit, the
parties and court treated the wrongful death action and the
negligence claim as equivalent. In her brief to us, Jackalyn
claims that she also brought a survival action in the Superior
Court. Her complaint, however, does not point to our survival
statute, G. L. c. 228, § 1. Although we assume that her
appellate brief meant to refer to a negligence claim, we only
address the wrongful death claim because that is the question
that the First Circuit certified to us.
6
decedent was the only legal party to sign the arbitration
agreement. The Federal District Court judge concluded that the
cause of action was derivative, and thus the arbitration
agreement bound the estate on behalf of the wrongful death
beneficiaries.9 The judge then granted the motion to compel
arbitration, but declined to stay Jackalyn's Superior Court
action pending the outcome of the arbitration. Instead, the
parties agreed to do so. Jackalyn then asked the judge to
certify questions to this court, but he declined to do so at the
"thirteenth hour." Jackalyn appealed from this decision to the
First Circuit.
The First Circuit certified two questions to us:
"1. Is the wrongful death claim of [the decedent's]
statutory heirs derivative or independent of [the
decedent's] own cause of action?
"2. If the answer to the first question does not resolve
the issue presented to the federal court, is Jackalyn['s]
wrongful death claim nonetheless subject to [the
decedent's] Agreement that her 'next of kin, guardian,
executor, administrator, legal representative, or heir'
would arbitrate claims against GGNSC?"
Although we have addressed the first question in cases
involving past iterations of our wrongful death statute, our law
today is clearly unsettled on the matter and, although the
9 In his decision, the judge explicitly disagreed with the
reasoning in another opinion that was decided in the Federal
District Court in Massachusetts. See Oahn Nguyen Chung vs.
StudentCity.com, Inc., U.S. Dist. Ct., No. 10-10943 (D. Mass.
Sept. 9, 2011).
7
parties raised the issue in Johnson v. Kindred Healthcare, Inc.,
466 Mass. 779 (2014), we did not address it because we decided
the case on different grounds. See id. at 788 n.14 (health care
agent's decision to arbitrate disputes does not bind patient
under health care proxy statute). 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 a wrongful death
claim of a statutory beneficiary is derivative of the decedent's
action and that the arbitration clause in question is
enforceable.
2. Discussion. a. Characterization of wrongful death
claims as derivative or independent. i. Under wrongful death
statute. The issue in this case cannot be understood without an
explanation of the two approaches to an action for wrongful
death, derivative and independent.
If we characterize claims of beneficiaries under a wrongful
death statute as "derivative," then the "wrongful death
liability is but an extension of the decedent's personal injury
claim." Willis & Peverall, The "Vanishing Trial": Arbitrating
Wrongful Death, 53 U. Rich. L. Rev. 1339, 1352 (2019) (Willis &
Peverall). This means that "the beneficiaries of the death
action can sue only if the decedent would still be in a position
to sue." Ellis v. Ford Motor Co., 628 F. Supp. 849, 858 (D.
8
Mass. 1986), quoting Restatement (Second) of Judgments § 46
comment c (1982) (Restatement). Courts that follow this
interpretation emphasize "that the same tortious 'conduct' which
caused the decedent's personal injury also undergirds the
wrongful death action." Willis & Peverall, supra at 1353.
Under this view, because the wrongful death action is derivative
of the decedent's rights, the decedent "enjoys [exclusive]
rights over the wrongful death action such that he or she can
agree to arbitrate that claim entirely." Id.
On the other hand, if claims under a wrongful death statute
are "independent," then "the decedent's disposition of his
personal injury claim would have no effect on the wrongful death
claim. The situation would be as though the injured person and
his beneficiary each had a separate legal interest in his life,
assertable by separate action." Ellis, 628 F. Supp. at 858,
quoting Restatement, supra. Courts following this
interpretation have held that "wrongful death liability does not
concern recovery for personal injury at all or . . . any other
claim that the decedent may have had against the tortfeasor."
Willis & Peverall, supra at 1354. The action "deals only with
the economic effect the decedent's death had upon specific
family members." Id. Thus, the decedent would be without
authority to bind beneficiaries like Jackalyn to arbitration for
her wrongful death claims. See id.
9
Unlike with statutes giving rise to derivative claims,
then, statutes giving rise to independent claims could have an
inefficient application; if a nursing home resident signed an
arbitration agreement and her nursing home injured her, she
could bring only her negligence claim through arbitration. If
she later died from those injuries, a statute giving rise to
independent wrongful death claims would permit her executor to
commence a wrongful death action in court based on the same
conduct even if she had resolved her negligence claims against
the nursing home through arbitration. See Ellis, 628 F. Supp.
at 857-858.
ii. Common-law basis for wrongful death claims. Jackalyn
argues that our wrongful death statute, G. L. c. 229, § 2, does
not negate an independent common-law right to bring a wrongful
death claim. Like most jurisdictions, we previously held that
"there [was] no common law right to civil recovery for death,
and that any right to such recovery [was] solely a creation of
the statutes." Gaudette v. Webb, 362 Mass. 60, 64 (1972).10 In
Gaudette, however, we followed the United States Supreme Court
in concluding that our law had evolved; thus, "the right to
recovery for wrongful death is [now] of common law origin," and
10 For a thorough history of the development of our common-
law wrongful death jurisprudence, see Matsuyama v. Birnbaum, 452
Mass. 1, 21-23 (2008), and Gaudette, 362 Mass. at 64-70.
10
no longer solely created by statute. Id. at 71, discussing
Moragne v. States Marine Lines, Inc., 398 U.S. 375, 409 (1970).
The defendant points to Gaudette as support for the proposition
that our wrongful death jurisprudence, with its common-law
foundation, is open to judicial control.
The defendant misunderstands our interpretation of G. L.
c. 229, § 2. See Bratcher v. Galusha, 417 Mass. 28, 30-31
(1994) (declining plaintiff's request to "rewrite or ignore the
plain language"); Hallett v. Wrentham, 398 Mass. 550, 555 (1986)
("Gaudette does not stand for the proposition that the
requirements of the statute may be disregarded"). Far from
providing this court unbridled power to interpret G. L. c. 229,
§ 2, the Gaudette decision instead requires that we follow the
procedures prescribed in that statute, see Marco v. Green, 415
Mass. 732, 735 (1993), so long as we anchor that statutory
interpretation to the common law so as to "meet changes in the
evolving life of the Commonwealth" as we do with "all common-law
causes of action," Matsuyama v. Birnbaum, 452 Mass. 1, 23
(2008). See id. at 4 (recognizing that loss of chance of
survival due to medical negligence "comports with the common law
of wrongful death as it has developed in the Commonwealth" and
with G. L. c. 229, § 2).11 In deciding whether wrongful death
11Any of our interpretations of the common law must
therefore recognize that G. L. c. 229 sets forth (a) that
11
rights are derivative or independent, we look first to the
statute and then, if the language does not resolve the question,
to the common law for guidance. See Pobieglo v. Monsanto Co.,
402 Mass. 112, 116 (1988).
b. Wrongful death claims under G. L. c. 229, § 2, as
derivative. i. Statutory history. In 1840, Massachusetts was
the first State to enact a wrongful death statute. See Willis &
Peverall, supra at 1359. The Legislature set the foundation of
the statute's modern iteration in 1946, by establishing
liability for towns and common carriers whose negligence
resulted in death. St. 1946, c. 614, § 1. The Legislature
amended the statute in 1947, broadening the liability for
"wilful, wanton, or reckless" behavior. St. 1947, c. 506, § 1A.
In 1958, the Legislature enacted the language more or less
as it stands today.12 St. 1958, c. 238, § 1. Section 2 of G. L.
c. 229 states, in pertinent part:
"A person who (1) by his negligence causes the death
of a person in the exercise of due care, or (2) by
willful, wanton or reckless act causes the death of a
person under such circumstances that the deceased
damages are assessed based on the degree of the defendant's
culpability; (b) the range of recoverable damages; (c) that only
a "personal representative on behalf of the designated
categories of beneficiaries" can bring the action; and (d) a
statute of limitations. Gaudette, 362 Mass. at 71.
12 After 1958, amendments to the statute were relatively
minimal, for example, increasing the statute of limitations, St.
1989, c. 215, § 1, and increasing the amount recoverable by the
claimant, St. 1972, c. 440, § 1.
12
could have recovered damages for personal injuries if
his death had not resulted . . . shall be liable in
damages in the amount of: (1) the fair monetary value
of the decedent to the persons entitled to receive the
damages recovered, as provided in [G. L. c. 229, § 1]
. . . . Damages under this section shall be recovered
in an action of tort by the executor or administrator
of the deceased."13
ii. Plain language. "When conducting statutory
interpretation, this court strives to effectuate the
Legislature's intent by looking first to the statute's
plain language" (quotations and citation omitted).
Plymouth Retirement Bd. v. Contributory Retirement Appeal
Bd., 483 Mass. 600, 604 (2019). We consider the plain
language of the section at issue by analyzing the statute
as a whole. See id. at 605.
In 1958, the Legislature amended G. L. c. 229, § 2, to
permit compensation only "under such circumstances that the
deceased could have recovered damages for personal injuries
if his death had not resulted." St. 1958, c. 238, § 1.
Through this amendment, the Legislature expressly tethered
a wrongful death claim to tortious conduct that caused the
decedent's personal injury. In other words, where no cause
of action for wrongful death exists unless the decedent
could have sued for personal injury, then the wrongful
13 General Laws c. 229, § 1, creates a roadmap of who
constitutes a beneficiary of the decedent.
13
death claim necessarily derives from the underlying tort.
As we have noted in other contexts, "claims for recovery
based on personal injury, wrongful death, or loss of
consortium are not distinct when they derive from the same
constellation of facts." Sisson v. Lhowe, 460 Mass. 705,
710 (2011).
The "under such circumstances" clause certainly
modifies wrongful death actions brought based upon
"willful, wanton, or reckless act[s]." G. L. c. 229, § 2.
By virtue of the conjunction "or" placed between the
different types of acts causing wrongful death, the clause
also seems to modify the cause of action based on
negligence. Id. In any event, we conclude that the clause
applies to both wrongful death actions caused by willful,
wanton, or reckless acts, as well as by negligence.
Moreover, the elements of our wrongful death action based
on negligence mirror those of an ordinary negligence claim.
See Correa v. Schoeck, 479 Mass. 686, 693 (2018) ("To
prevail in her wrongful death suit [under G. L. c. 229,
§ 2, plaintiff] must prove that the defendants were
negligent"). Thus, the decedent's "executor or
administrator" can bring a negligence claim pursuant to
G. L. c. 229, § 2 only "under such circumstances" in which
14
the decedent could have raised an ordinary negligence
claim.
The language and structure of our wrongful death
statute also reflects the derivative nature of claims
brought under it. Under G. L. c. 229, § 2, only the
"executor or administrator of the deceased" can initiate
the wrongful death action, and the statute separates the
permissible claimant from the permissible beneficiaries in
§ 1. The Legislature thereby intended wrongful death
rights to remain tied to the decedent's action; if the
rights belonged to the statutory beneficiaries, then the
Legislature presumably would have listed them in § 2 with
the other claimants permitted to commence lawsuits.
Indeed, both G. L. c. 229, §§ 1 and 2, "provide[] for a
single action[, on behalf of the class of beneficiaries
defined in G. L. c. 229, § 1,] brought by the decedent's
executor or administrator. The executor or administrator
presents all claims by the designated beneficiaries for
damages flowing from the wrongful death." Hallett, 398
Mass. at 555. Id. at 556 (loss of consortium and wrongful
death claims not independent).
iii. Evolving judicial interpretation. We also find
support for concluding that wrongful death claims brought
under G. L. c. 229, § 2, are derivative in our
15
interpretation of the various legislative amendments. See
Commonwealth v. Wassilie, 482 Mass. 562, 576 (2019),
quoting Commonwealth v. Quinn, 439 Mass. 492, 499-500
(2003) ("unspecific statutory language 'may nonetheless be
sufficiently definite because of judicial construction,
common law meaning, or the statutory history of particular
terms'"). Prior to the Legislature's amendments in 1958,
we interpreted our wrongful death statutes to create
independent rights for beneficiaries. See Ellis, 628 F.
Supp. at 858, citing McCarthy v. William H. Wood Lumber
Co., 219 Mass. 566, 567 (1914) ("At one time it was
undisputed that Massachusetts' wrongful death action was of
the 'independent' variety"). See also Oliveria v.
Oliveria, 305 Mass. 297, 301 (1940), overruled on another
ground by Sorensen v. Sorensen, 369 Mass. 350 (1975) ("The
statute does not limit the remedy, as do the statutes of
many jurisdictions, to instances where the deceased could
have maintained an action if he had lived. The action for
death is not derivative in character"); Wall v.
Massachusetts Northeastern St. Ry., 229 Mass. 506, 507
(1918) (wrongful death actions did not accrue during
decedent's lifetime and Massachusetts differed from
derivative state statutes providing "a right of action for
the death of the injured person only if he might have
16
maintained an action had he lived" [quotations and citation
omitted]); Montellier v. United States, 202 F. Supp. 384,
394 (E.D.N.Y. 1962), aff'd, 315 F.2d 180 (2d Cir. 1963)
("[because Massachusetts's wrongful death statute] created
a right in the survivors which did not arise until the
wrongful death, the deceased had no power to barter it away
and his execution and delivery of a release was nugatory as
to his survivors").14
Since the amendments to G. L. c. 229, § 2, in 1958,
this court has not held claims under the statute to be
independent. See Johnson, 466 Mass. at 788 n.14. Although
we have not directly reached the issue, see id., the
direction of our case law in other contexts appears clear.
See Sisson, 460 Mass. at 710 (wrongful death not distinct
from other claims when facts same); Tobin v. Norwood
Country Club, Inc., 422 Mass. 126, 138 (1996) (contributory
negligence of decedent reduces damages on all claims, not
just those awarded to estate); Santos v. Lumbermens Mut.
Cas. Co., 408 Mass. 70, 77-78 (1990) (beneficiaries receive
award, but must operate through "conduit" of executor or
14See also Beausoleil's Case, 321 Mass. 344, 347 (1947)
(decedent cannot "prevent his statutory beneficiaries from
exercising [right to bring wrongful death claim] when it comes
into existence at his death"); Eldridge v. Barton, 232 Mass.
183, 186 (1919) ("damages recovered [for decedent's death] would
not be assets of the estate in the hands of the administrator").
17
administrator); Norman v. Massachusetts Bay Transp. Auth.,
403 Mass. 303, 308 (1988) ("In a wrongful death action,
damages are not recoverable both for the injured person's
losses and the derivative losses of others"); Hallett, 398
Mass. at 556 (loss of consortium and wrongful death not
independent claims). Overall, the "trend in [our] law is
against allowing" claims under G. L. c. 229, § 2, to be
independent of the decedent's own cause of action. Fidler
v. E.M. Parker Co., 394 Mass. 534, 547 (1985) (discussing
movement away from independent claims for wrongful death
and loss of consortium).
iv. Other jurisdictions. The wrongful death statutes
in other jurisdictions and the judicial interpretations
thereof augment our conclusion. See Doe v. Superintendent
of Schs. of Worcester, 421 Mass. 117, 130 n.4 (1995). The
majority of States conclude that where an action for the
injuries causing the decedent's death "could not have been
brought by the deceased, had he survived, . . . no right of
action [for wrongful death] . . . can vest in the
deceased's administrator or representative for the benefit
of the beneficiaries" because "even though the right
created by the statute is a new cause of action, it is
still derivative and dependent on the continuance of a
right in the decedent to maintain an action for his injury
18
up to the time of his death." 12 Am. Jur. Trials, Wrongful
Death Actions § 16, at 344-345 (1966). The States
following the majority rule do not provide express
independent causes of action for the beneficiaries. See,
e.g., Behurst v. Crown Cork & Seal USA, Inc., 346 Or. 29,
40 (2009) (en banc) ("Only the . . . personal
representative may maintain an action under" wrongful death
statute). See also In re Labatt Food Serv., L.P., 279
S.W.3d 640, 646 (Tex. 2009) ("While it is true that damages
for a wrongful death action are for the exclusive benefit
of the beneficiaries and are meant to compensate them for
their own personal loss, the cause of action is still
entirely derivative of the decedent's rights"). But see
Ping v. Beverly Enters., Inc., 376 S.W.3d 581, 598 (Ky.
2012), cert. denied, 569 U.S. 954 (2013) (predispute
arbitration agreement not enforceable against wrongful
death claim where " wrongful death and survival actions are
separate and distinct"); Gilloon v. Humana, Inc., 100 Nev.
518, 520 (1984) (wrongful death statute creates independent
cause of action for heirs).
Because of the 1958 legislative amendments to G. L.
c. 229, § 2, we adopt the majority rule that precludes
wrongful death actions unless decedents could have brought
an action for the injuries that caused their death. There
19
are, however, other ways that an arbitration agreement may
be invalid.
c.. Other possible grounds for invalidating
arbitration agreement. i. Lack of consent. A contract
generally only binds those who consent to its terms
(citation omitted). See Levy v. Levy, 309 Mass. 230, 234
(1941). Jackalyn argues that even if wrongful death claims
are derivative, the arbitration agreement cannot control
the decedent's beneficiaries because they never consented
to its terms.15 We need not consider consent, however,
because the cause of action for the injuries resulting in
the decedent's wrongful death belongs to the decedent
alone, and the decedent alone had the right to decide
whether the beneficiaries must arbitrate those claims. The
beneficiaries' lack of consent is thus inconsequential.
ii. Contract defenses under Massachusetts Arbitration
Act. That we classify the wrongful death action as
derivative is not necessarily dispositive of the question
whether the arbitration agreement binds decedent's
beneficiaries. We assess the validity of nursing home
arbitration agreements pursuant to the Federal Arbitration
There are common-law rules for binding nonsignatory third
15
parties to a contract. See Machado v. System4 LLC, 471 Mass.
204, 209 (2015).
20
Act, 9 U.S.C. §§ 1 et seq., and the Massachusetts
Arbitration Act, G. L. c. 251. See Miller v. Cotter, 448
Mass. 671, 678 (2007) (applying Massachusetts Arbitration
Act although "cognizant that the Federal [Arbitration] Act
almost certainly applies as well"). Moreover, the
Massachusetts Arbitration Act, the Federal Arbitration Act,
and relevant case law all demonstrate the strong public
policy in favor of arbitration in commercial disputes. See
id. at 676. Under both acts, arbitration agreements are
enforceable "save upon such grounds as exist at law or in
equity for the revocation of any contract." St. Fleur v.
WPI Cable Sys./Mutron, 450 Mass. 345, 350 (2008), quoting 9
U.S.C. § 2. We therefore "apply generally applicable
State-law contract defenses . . . to determine the validity
of an arbitration agreement" even if we find it to be
derivative. See St. Fleur, supra. These defenses include
fraud, undue influence or duress, or unconscionability.
See Miller, supra at 679. However, we have declined to
adopt a "per se rule that predispute arbitration agreements
in the nursing home context should be void as a matter of
public policy." Id. at 682.
As we found in Miller, 448 Mass. at 679-684, the facts
here, as determined by the Federal District Court judge,
demonstrate no fraud, duress, undue influence, or
21
unconscionability. Heathwood allowed Jackalyn to study the
documents for some time before signing, and there was no
evidence that she did not assent to the terms of the
arbitration agreement. The agreement also was not
procedurally unconscionable, given that it clearly
indicated, in bold-faced capital letters, that the
agreement was not mandatory for continuing care or
admission. The agreement further advised Jackalyn to read
it carefully before signing, and Heathwood provided a
thirty-day revocation period.16
3. Conclusion. We answer the certified questions as
follows. We conclude that claims of statutory
beneficiaries under our wrongful death statute, G. L.
c. 229, § 2, are derivative of the decedent's own cause of
16Placing a loved one in a nursing home is for many, if not
most, people a heart-wrenching decision. Once the decision has
been made and the day arrives to register one's parent, spouse,
significant other, dear friend or other family member, residents
and their legal proxies may feel too overwhelmed by
circumstances to comprehend complex legal language. Prudence
and good practice requires that those registering the resident
explain any arbitration agreement in clear and straightforward
language and provide ample time for residents, or their
representatives, to decide whether to sign such an agreement.
We will scrutinize arbitration agreements with particular care
if admission to a nursing home is conditioned on agreeing to
arbitrate any legal claims. There are many reasons why
arbitration agreements might make sense and many reasons that
such agreements may raise grave concerns. Ultimately, the
appropriateness of predispute arbitration agreements between
nursing homes and residents, as a general rule, is a legislative
prerogative.
22
action, and that therefore the decedent's arbitration
agreement binds those beneficiaries. We also conclude
that, in the circumstances of this case, the arbitration
agreement binds the executor or administrator of the
decedent's estate to arbitrate the wrongful death action on
behalf of the decedent's statutory beneficiaries.
The Reporter of Decisions is to furnish attested
copies of this opinion to the clerk of this court. The
clerk in turn will transmit one copy, under the seal of the
court, to the clerk of the United States Court of Appeals
for the First Circuit, as the answer to the questions
certified, and will also transmit a copy to each party.