Millie,whosuffers from dementia, diabetes, and heart problems,was admitted toa nursing home two years ago. Because ofher 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 anydisputes that arose.After Millie left the nursing home two years later, her husband sued on her behalf for negligent treatmentand malpractice during her stay. The nursing home moved to forcethe 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, response should address the following questions:

(1)Should a dispute involving medical malpractice be forcedinto arbitration? This is a claim of negligent care, not abreach of a commercial contract. Is it ethical for medicalfacilities to impose such a requirement before the harm is suffered? Is there really anybargaining over such terms?

(2) Should a person with limited mental capacity be held toan arbitration clause agreed to by the next of kin whosigned 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?