Millie, who suffers from dementia, diabetes, and heart problems, was admitted to a nursing home two years ago. Because of her mental condition, her daughter, Beverly , filled out the paperwork and signed the admissions agreement at the nursing home. The agreement included a clause requiring parties to submit to arbitrate any disputes that arose. After Millie left the nursing home two years later, her husband sued on her behalf for negligent treatment and malpractice during her stay. The nursing home moved to force the matter to arbitration. The trial court held that the arbitration agreement was not enforceable, and the nursing home appealed from that decision.

There is an entire body of law dedicated to the (in)validity of arbitration clauses in nursing home admissions agreements. The New Hampshire courts seem to struggle with these cases more than any other state. In considering the above facts, the student's response should address the following questions:

(1) Should a dispute involving medical malpractice be forced into arbitration? This is a claim of negligent care, not a breach of a commercial contract. Is it ethical for medical facilities to impose such a requirement before the harm is suffered? Is there really any bargaining over such terms?

(2) Should a person with limited mental capacity be held to an arbitration clause agreed to by the next of kin who signed on behalf of the patient? What if the next of kin also held a valid Power of Attorney to act on the patient's behalf? Why or why not?

(3) Would you support a law declaring all such arbitration clauses to be either enforceable or unenforceable so as to provide predictability and to keep these disputes out of court?

As always, responses should contain approximately 500 to 750 words. Students are encouraged to conduct outside research on an as needed basis. Any outside sources used should be cited using APA documentation rules.