Can My Family Sue a Massachusetts Nursing Home for Neglect?

Yes, and the part most families get wrong is which door to walk through. Four separate bodies of Massachusetts law reach a licensed nursing home, and three of them move faster than a lawsuit while paying the resident’s family nothing at all. The state reporting system under M.G.L. c. 111, secs. 72F to 72L puts an investigator in the building within days and can put the Attorney General on the facility, but the penalties it collects go to the Commonwealth. The residents’ rights statute, M.G.L. c. 111, sec. 70E, creates real enforceable rights and then routes the private lawsuit straight into the medical malpractice procedure chapter, which means a screening tribunal and a bond rather than a quick consumer claim. A negligence or wrongful death case is where compensation actually lives, and it carries a procedural step most people have never heard of. The fourth track, the one almost nobody writes about, is the Attorney General’s own consumer protection regulation written specifically for long term care facilities. To talk through a specific situation, the Jim Glaser Law line at (617) JIM-WINS is answered 24 hours a day, and the first telephone consultation is offered without charge.

Four Rulebooks, and Only One of Them Writes a Check

It is worth being blunt about this at the start, because families lose months to it. When a resident is found with a pressure ulcer nobody documented, or falls out of a bed whose alarm was switched off, or is hospitalized for dehydration in a building staffed to feed her, the instinct is to call the state. That instinct is correct, and it is also not a claim. The report opens a regulatory file, and a regulatory file produces findings, fines and license consequences payable to the Commonwealth. The private claim is a separate proceeding with separate rules, separate proof and a separate clock. Understand the regulatory track anyway, because the record it generates is frequently the best evidence in the lawsuit that follows.

The four tracks, in the order this article takes them, are the reporting statute, the residents’ rights statute, the tort claim with its tribunal, and consumer protection under M.G.L. c. 93A. The firm’s general approach to these matters is described on the nursing home abuse practice page, and the immediate practical steps for a family that has just found an injury are set out in the first 24 hours after a nursing home injury guide.

The Reporting System, M.G.L. c. 111, secs. 72F to 72L

This is the statute that governs abuse and neglect inside a licensed facility, and it is not the elder abuse statute most search results point at. Chapter 19A is the older-adult protective services system, and its facility-side mandated reporter is the manager of an assisted living residence. For a nursing home, rest home or skilled nursing facility, the operative sections are in chapter 111, they report to the Department of Public Health rather than to the elder affairs agency, and they define a resident as “an individual who resides in a long term care facility licensed under section 71”.

The Words the Statute Actually Uses

Section 72F does something unusually helpful for a statute: it separates four things that ordinary conversation runs together.

Abuse is “the willful infliction of injury, unreasonable confinement, intimidation, including verbal or mental abuse, or punishment with resulting physical harm, pain or mental anguish or assault and battery”, and the section adds that “verbal or mental abuse shall require a knowing and willful act directed at a specific person.”

Neglect is much broader and requires no intent at all. It is “failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness”. That is the definition most family complaints actually fit. Nobody meant to hurt anyone. The call light went unanswered, the repositioning schedule was not kept, the weight loss was not charted.

Mistreatment is its own category, aimed at what is done in the name of care: “the use of medications or treatments, isolation, or physical or chemical restraints which harm or are likely to harm the patient or resident”.

Misappropriation of patient or resident property covers the missing hearing aid and the emptied account, defined as “the deliberate misplacement, exploitation or wrongful, temporary or permanent use of a patient’s or resident’s belongings or money without such patient’s or resident’s consent.”

Who Has to Report, and How Fast the State Has to Move

Section 72G puts the duty on a long list of people who work in and around the building, including a nurse aide, an orderly, an administrator, a physician, a nurse, a social worker, a physical or occupational therapist and a police officer, all “paid for caring for a patient or resident”. Anyone on that list “who has reasonable cause to believe that a patient or resident has been abused, mistreated or neglected or had property misappropriated, shall immediately report such abuse, mistreatment or neglect or misappropriation of patient or resident property to the department”, by electronic report, fax or oral communication, and if by oral communication then “by making a written report within 48 hours after such oral communication”. Failing to do it carries a fine of “not more than $1,000”.

A family member is not a mandated reporter and does not need to be. The statute is explicit that “In addition to those persons required to report pursuant to this section, any other person may make such a report if such person has reasonable cause to believe that a patient or resident has been abused, mistreated or neglected or had property misappropriated.”

What happens next is on a clock that surprises people. Under section 72H, the department must “notify the attorney general forthwith upon receipt of an oral or written report made under the provisions of section 72G”, and must investigate “within 24 hours if the department has reasonable cause to believe the patient’s or resident’s health or safety is in immediate danger from further abuse or neglect and within seven days for all other such reports”. The investigation is not a paper exercise. It “shall include a visit to the facility”, an interview with the resident, “a determination of the nature, extent and cause or causes of the injuries, the identity of the person or persons responsible therefor and all other pertinent facts”, and a written evaluation of “the risk of physical or emotional injury to any other residents in such facility”. Where the department has reason to believe a resident died of abuse, mistreatment or neglect, it reports the death immediately to the Attorney General, the district attorney and the medical examiner.

The resulting report is confidential, and there is a specific route to it. Section 72I provides that “The patient or resident or counsel therefor, the reporting person or agency, the appropriate professional board of registration or a social worker assigned to the case may, upon written request and the approval of the commissioner, receive a copy of the department’s written report.”

The One Fee Shifting Remedy Here Belongs to the Staff, Not the Family

Section 72G contains the only attorney fee provision anywhere in this scheme, and it protects the employee who spoke up. No facility, home health agency or hospice program may discharge, discriminate or retaliate against a person who makes a good faith report or testifies about one, and a facility that does “shall be liable to the person so discharged, discriminated or retaliated against, for treble damages, costs and attorneys’ fees.”

That matters to a family for a practical reason rather than a legal one. The aide who documented the injury and then lost her job has her own claim, her own lawyer and her own reason to testify. A good faith report also carries civil and criminal immunity in both directions, and if someone sues a reporter and loses, “the court shall order the plaintiff to pay the defendant reasonable costs and expenses including, but not limited to, attorneys’ fees, lost wages and court costs.”

The Attorney General’s Penalties, and Where That Money Goes

Section 72K gives the Attorney General a civil action against a person who commits abuse, mistreatment or neglect, misappropriates property, or “wantonly or recklessly permits or causes another” to do either. The penalty ladder is graduated by outcome: “$25,000 if no bodily injury results; $50,000 if bodily injury results; $100,000 if sexual assault or serious bodily injury results; and $250,000 if death results.”

Two features of section 72K are worth holding onto. The first is that the money is not the family’s. The statute directs the comptroller to deposit “not less than 50 per cent of any amount secured” into a state long term care fund, and nothing in it pays the resident. The second is a sentence that tells you something important about the private case: “Section 60B of chapter 231 shall not apply to an action brought by the attorney general pursuant to this section.” The Legislature exempted the Attorney General from the malpractice tribunal, which only makes sense because the tribunal otherwise reaches these claims. More on that below.

The Attorney General also gets a longer clock than a private plaintiff. Section 72K(c) provides that “the attorney general may file a civil action within 4 years next after an offense is committed.”

Finally, section 72J is the nurse aide registry, and section 72L sends a substantiated finding against a licensed professional to the appropriate board of registration for discipline. A registry finding is a public, searchable fact about a person who worked on the unit.

The Residents’ Rights Statute, M.G.L. c. 111, sec. 70E

Section 70E is the Massachusetts patients’ and residents’ bill of rights, and it plainly covers nursing homes. Its definition of a facility includes any “convalescent or nursing home, rest home, or charitable home for the aged, licensed or subject to licensing by the department”, and it also reaches “a state-operated veterans’ home”, which matters because a claim against a public facility runs into an entirely different set of rules covered in the article on suing a government entity in Massachusetts.

The statute is emphatic that the rights are universal inside the building: “The rights established under this section shall apply to every patient or resident in said facility.” Every resident is entitled to written notice of them on admission, and “In addition, such rights shall be conspicuously posted in said facility.”

The Rights That Matter Most After an Injury

Several of the enumerated rights turn out to be evidence-gathering tools.

The right to records is the important one. A resident may, “upon request, to inspect his medical records and to receive a copy thereof in accordance with section seventy”, with the copying fee tied to actual expense. Where the record is requested to support a claim or appeal under the Social Security Act or a needs-based benefit program, no fee may be charged at all and the facility must produce the record “within thirty days of the request”.

The right “to have all reasonable requests responded to promptly and adequately within the capacity of the facility” is more useful than it sounds, because it converts a pattern of ignored requests into a statutory violation rather than a customer service complaint.

There is also an identification requirement that quietly solves the hardest evidentiary problem in these cases, which is naming the person who was in the room. A facility must require everyone who examines, observes or treats a resident to wear “an identification badge which readily discloses the first name, licensure status, if any, and staff position of the person so examining, observing or treating a patient or resident”.

The Remedy Sentence, and What It Actually Does

Here is where a great deal of published summary goes wrong. Section 70E does create a private right of action, but it does so by pointing somewhere else: “Any person whose rights under this section are violated may bring, in addition to any other action allowed by law or regulation, a civil action under sections sixty B to sixty E, inclusive, of chapter two hundred and thirty-one.”

Sections 60B to 60E of chapter 231 are the medical malpractice procedure sections. Section 60B is the screening tribunal. Section 60C bars a dollar figure in the complaint. Section 60D sets the limitations rule for a minor’s claim against a health care provider. Section 60E lets the trial judge appoint an impartial examiner. None of the four contains an attorney fee award. So a section 70E claim is a real claim, and it is not the fee shifting consumer remedy it is sometimes described as.

Section 70E closes with a sentence that keeps the rest of the law open: “No provision herein shall be construed as limiting any other right or remedies previously existing at law.”

The Tort Claim, and the Tribunal Nobody Warns Families About

Most nursing home cases are ordinary negligence cases in substance. Someone owed a duty of care, the care was not given, and a person was hurt. What makes them procedurally different from a slip and fall in a supermarket, which the article on premises liability in Massachusetts covers, is that a nursing home is a licensed health care provider.

Section 60B of chapter 231 says so in terms. For purposes of the tribunal, “a provider of health care shall mean a person, corporation, facility or institution licensed by the commonwealth to provide health care or professional services as a physician, hospital, clinic or nursing home, dentist, registered or licensed nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, social worker, or acupuncturist, or an officer, employee or agent thereof acting in the course and scope of his employment.”

The consequence is a screening step. “Every action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth”, and an attorney, and where the defendant is not a physician the medical seat is filled by “a representative of that field of medicine in which the alleged tort or breach of contract occurred”. The hearing happens “within fifteen days after the defendant’s answer has been filed”. The plaintiff presents an offer of proof, and the tribunal decides whether the evidence “is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result”.

The part that ends cases is what follows a finding for the defense. The plaintiff “may pursue the claim through the usual judicial process only upon filing bond in the amount of six thousand dollars in the aggregate secured by cash or its equivalent”, payable to the defendant for costs and fees if the plaintiff ultimately loses. The single justice may increase it. On a finding of indigency the justice “may reduce the amount of the bond but may not eliminate the requirement thereof”. And the clock is short: “If said bond is not posted within thirty days of the tribunal’s finding the action shall be dismissed.”

Section 60C adds a smaller rule with a real effect on how these cases read: “No writ or complaint for malpractice, error or mistake against a provider of health care shall contain an ad damnum or monetary amount claimed against such defendant.” The complaint will not carry a number. That is the statute, not the lawyer being coy.

Whether a set of facts is pleaded as malpractice or as ordinary negligence is a strategic question rather than a formality, and it is one reason these files are handled differently from the auto cases described in the article on how a Massachusetts case is valued. The related deadlines are covered in the article on the medical malpractice statute of limitations.

Regulations Are Evidence, Not Automatic Liability

Massachusetts long term care facilities are licensed by the Department of Public Health and are governed by 105 CMR 150.00, Standards for long-term care facilities, which the department publishes under M.G.L. c. 111, secs. 3, 71 and 72. Two companion regulations matter in an injury case: 105 CMR 153.00 covers licensure procedure and suitability, and 105 CMR 155.00 covers patient and resident abuse prevention, reporting, investigation, penalties and the registry.

Proving a facility broke one of those rules is powerful, and it is not the end of the argument. Massachusetts does not treat a safety regulation as automatic liability. In Perry v. Medeiros, 369 Mass. 836 (1976), the Supreme Judicial Court restated the settled rule: “The general rule in Massachusetts is that violation of the safety statute or ordinance does not in itself give rise to a cause of action but is evidence of negligence.” A violation is admitted, argued and weighed. It does not replace proof that the violation caused this resident’s injury.

The Fourth Track, and Almost Nobody Writes About It

The Attorney General has a consumer protection regulation written specifically for this industry. It is 940 CMR 4.00, Long term care facilities, promulgated under M.G.L. c. 93A, sec. 2(c), and it declares a long list of facility practices to be unfair or deceptive acts in violation of chapter 93A.

Several of its provisions are worth a family’s attention, all of them paraphrased here rather than quoted. Section 4.02(1) makes it an unfair or deceptive act for a licensee or administrator to fail to comply with any existing state or federal statute, rule or regulation that protects residents or prospective residents, which is a direct bridge from a licensing violation to a consumer claim. Section 4.04 governs the admission contract and bars a series of conditions of admission: a third party guarantee of payment, an agreement to waive or limit the facility’s liability for injury caused by the negligence of the facility or its employees, acceptance of a physician or pharmacy chosen by the facility, an agreement to pay the facility’s collection costs and attorney fees, and the waiver of any benefit or right conferred by a statute or regulation intended to protect residents. It also requires admission contract documents to be printed no smaller than 12 point type and in a language the resident understands.

Section 4.08 is the records provision and it is faster than the statute. It makes it an unfair or deceptive act to refuse a resident or legal representative access, on an oral or written request, to all records concerning the resident including current clinical records within 24 hours, with photocopies to follow on two working days’ notice. Section 4.09 governs discharges and transfers, requiring advance written notice with a statement of hearing rights, barring a discharge while payment appeals are pending, requiring physician documentation of the reason, and requiring readmission to the next available semi-private bed after a hospitalization or therapeutic leave.

There is a limit on the consumer theory that has to be stated honestly, because it is the argument the defense will make. In Darviris v. Petros, 442 Mass. 274 (2004), the Supreme Judicial Court held that “the negligent provision of medical care, without more, does not give rise to a claim under G. L. c. 93A”, while making clear that consumer protection statutes “may be applied to the entrepreneurial and business aspects of providing medical services”. A chapter 93A theory against a facility therefore has to rest on conduct the regulation actually describes, admission contracts, billing, records refusals, improper discharges, rather than on relabeling a clinical injury as a consumer complaint.

The Arbitration Clause in the Admission Packet

Almost every admission packet in the Commonwealth contains an agreement to arbitrate. Whether it binds anyone turns on two decisions that came out opposite ways, and the difference is who signed and under what authority.

In Miller v. Cotter, 448 Mass. 671 (2007), the Supreme Judicial Court enforced one. The son who signed held both a power of attorney and a health care proxy, had admitted his father to facilities before, and had worked twenty-seven years in insurance claims. The court found nothing procedurally unconscionable in the setting, noting that “Miller was not required to sign the agreement as a condition of admission”, and nothing substantively unconscionable in the terms, noting that “The agreement was bilateral in that either party could invoke its provisions. All rights and remedies available in the courts were preserved for the arbitrator, and Miller had a unilateral right of recision for thirty days after execution of the agreement.” The court declined to create a blanket rule against these agreements, and it treated the separate printing of the arbitration document as significant “because it suggests that Birchwood made clear that the arbitration agreement was not a condition of admission.”

In Johnson v. Kindred Healthcare, Inc., 466 Mass. 779 (2014), the same court refused to enforce one, and the reason was authority rather than fairness. The signer was a health care agent acting under a health care proxy, nothing more. The court held that “a health care agent’s decision to enter into an arbitration agreement is not a health care decision as that term is defined and used in the health care proxy statute and, therefore, that an agreement to arbitrate all claims arising out of a principal’s stay in a nursing facility does not bind the principal where the agreement was entered into solely by a health care agent under the authority of a health care proxy.” A health care agent’s authority “does not include the authority to bind the principal to arbitration.”

The practical question in a real case is therefore narrow and answerable from the paperwork. Who signed, what document gave them authority, was the arbitration agreement a condition of admission, was it a separate document, and could it be rescinded. Those five facts decide the forum.

How Long You Have, and the Question Nobody Has Answered

The ordinary tort period is three years. M.G.L. c. 260, sec. 2A provides that “Except as otherwise provided, actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues.” The general rules and their exceptions are set out in the article on the Massachusetts personal injury statute of limitations.

The malpractice paragraph of M.G.L. c. 260, sec. 4 is also three years, and it adds an outer limit: “Actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitoria shall be commenced only within three years after the cause of action accrues, but in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury upon which such action is based except where the action is based upon the leaving of a foreign object in the body.”

So the deadline to file is three years on either road. What differs is the seven-year repose, and there the two statutes do not line up: section 4’s list names hospitals and sanitoria and does not name nursing homes, while section 60B of chapter 231 expressly includes a nursing home in its definition of a provider of health care. Nothing read for this article resolves whether that repose reaches a licensed nursing home, and anyone stating it confidently in either direction is going past the text. What is not in doubt is that a family should treat three years as the operating deadline, because the evidence problem gets worse long before the legal one does.

Tolling is narrower than families expect. M.G.L. c. 260, sec. 7 extends the period only “If the person entitled thereto is a minor, or is incapacitated by reason of mental illness when a right to bring an action first accrues”. An assumption that any cognitively impaired resident is automatically covered by those words is an assumption, not a rule.

Where the resident has died, the claim is a wrongful death claim with its own statute, beneficiaries and procedure, covered in the article on wrongful death claims in Massachusetts. Family members who have suffered their own losses should also see the article on loss of consortium claims.

What Actually Builds One of These Cases

The proof is documentary before it is anything else, and most of it exists on the day of the injury and degrades quickly afterward.

The chart is the spine: nursing notes, the care plan and every revision to it, the Minimum Data Set assessments, treatment administration records, wound care documentation, weights, intake and output. Section 4.08 of the Attorney General’s regulation gives a resident or legal representative a 24-hour path to those records on request, and section 70E of chapter 111 gives a statutory right to inspect and copy them. The incident report and the internal investigation come next, then staffing records for the shifts in question, which are frequently the real subject of the case, then the facility’s public regulatory history, then the department’s own investigation file, obtainable by the resident or counsel on written request with the commissioner’s approval under section 72I. Serial photographs that show a wound progressing carry more weight than families expect, and so does a written baseline of what the resident could do before the injury, because the defense in a neglect case is almost always that the outcome was unavoidable given the underlying condition.

Two further points. Comparative fault can be argued even here, and how it works is covered in the article on comparative negligence in Massachusetts. And if there is a recovery, health insurers and public benefit programs may have a claim on part of it, which is the subject of the article on who gets paid out of a Massachusetts injury settlement. Fee arrangements are explained in the article on what personal injury lawyers charge.

If someone in your family has been hurt in a Massachusetts nursing home, the useful first step is to make the report and request the records, because both start clocks that run in your favor, and then to have someone read what comes back. Jim Glaser Law can be reached at (617) JIM-WINS, and the first telephone consultation is offered without charge.

Frequently Asked Questions

Q: Can I sue a nursing home in Massachusetts for neglect?

A: Yes. A neglect claim against a licensed Massachusetts facility is usually brought as a negligence or wrongful death action, and it may also be brought under the residents’ rights statute, M.G.L. c. 111, sec. 70E, which provides that “Any person whose rights under this section are violated may bring, in addition to any other action allowed by law or regulation, a civil action under sections sixty B to sixty E, inclusive, of chapter two hundred and thirty-one.” Reporting the facility to the Department of Public Health is a separate process that does not compensate the resident, so a family that only reports has not started a claim.

Q: Who do I report nursing home neglect to in Massachusetts?

A: The Department of Public Health, under M.G.L. c. 111, sec. 72G. Staff who are paid for caring for a patient or resident are required to report, but a family member may report too: the statute says that “In addition to those persons required to report pursuant to this section, any other person may make such a report if such person has reasonable cause to believe that a patient or resident has been abused, mistreated or neglected or had property misappropriated.” Chapter 19A is the separate older-adult protective services system, and its facility reporter is the manager of an assisted living residence rather than nursing home staff.

Q: How fast does the state have to investigate a nursing home complaint?

A: Quickly, by statute. M.G.L. c. 111, sec. 72H requires the department to investigate “within 24 hours if the department has reasonable cause to believe the patient’s or resident’s health or safety is in immediate danger from further abuse or neglect and within seven days for all other such reports”. The investigation “shall include a visit to the facility” and an interview with the resident, and the department must “notify the attorney general forthwith upon receipt of an oral or written report made under the provisions of section 72G”.

Q: What is the difference between abuse and neglect in a Massachusetts nursing home?

A: Intent. Under M.G.L. c. 111, sec. 72F, abuse is “the willful infliction of injury, unreasonable confinement, intimidation, including verbal or mental abuse, or punishment with resulting physical harm, pain or mental anguish or assault and battery”, while neglect is “failure to provide goods and services necessary to avoid physical harm, mental anguish or mental illness”. Most family complaints are neglect, which requires no intent at all. The statute also defines mistreatment separately as “the use of medications or treatments, isolation, or physical or chemical restraints which harm or are likely to harm the patient or resident”.

Q: Does the state fine go to my family?

A: No. Under M.G.L. c. 111, sec. 72K the Attorney General may bring a civil action with penalties of “$25,000 if no bodily injury results; $50,000 if bodily injury results; $100,000 if sexual assault or serious bodily injury results; and $250,000 if death results”, and the statute directs the comptroller to deposit “not less than 50 per cent of any amount secured” into a state long term care fund. Nothing in that section pays the resident or the family. Compensation comes only from a private claim.

Q: Is there a special court step in a Massachusetts nursing home case?

A: Often, yes, and most families have never heard of it. M.G.L. c. 231, sec. 60B defines a provider of health care to include a “nursing home”, and provides that “Every action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician licensed to practice medicine in the commonwealth”, plus an attorney. The tribunal decides whether the offer of proof “is sufficient to raise a legitimate question of liability appropriate for judicial inquiry or whether the plaintiff’s case is merely an unfortunate medical result”.

Q: What happens if the tribunal rules against me?

A: The case does not end automatically, but it gets expensive. Under M.G.L. c. 231, sec. 60B the plaintiff “may pursue the claim through the usual judicial process only upon filing bond in the amount of six thousand dollars in the aggregate secured by cash or its equivalent”, payable to the defendant for costs and fees if the plaintiff does not prevail. A judge may increase it, and on a finding of indigency “may reduce the amount of the bond but may not eliminate the requirement thereof”. If it is not posted, “If said bond is not posted within thirty days of the tribunal’s finding the action shall be dismissed.”

Q: My mother’s nursing home refuses to give me her records. What are my rights?

A: Two separate rules reach that refusal. M.G.L. c. 111, sec. 70E gives every resident the right, “upon request, to inspect his medical records and to receive a copy thereof in accordance with section seventy”, and requires production “within thirty days of the request” where the record is sought to support a claim under the Social Security Act or a needs-based benefit program, with no fee. Separately, 940 CMR 4.08, the Attorney General’s long term care regulation under chapter 93A, treats a refusal to give a resident or legal representative access to all records including current clinical records within 24 hours of an oral or written request as an unfair or deceptive act.

Q: I signed an arbitration agreement when my father was admitted. Is my family stuck with it?

A: It depends on what authority you signed under and how the document was presented. In Miller v. Cotter, 448 Mass. 671 (2007), the court enforced one, emphasizing that “Miller was not required to sign the agreement as a condition of admission”, that “The agreement was bilateral in that either party could invoke its provisions”, and that there was a thirty day right of rescission. In Johnson v. Kindred Healthcare, Inc., 466 Mass. 779 (2014), the court refused to enforce one signed by a health care agent, holding that “a health care agent’s decision to enter into an arbitration agreement is not a health care decision as that term is defined and used in the health care proxy statute” and that the agent’s authority “does not include the authority to bind the principal to arbitration.”

Q: Does breaking a nursing home regulation automatically mean the facility is liable?

A: No. Massachusetts treats it as evidence rather than as automatic liability. In Perry v. Medeiros, 369 Mass. 836 (1976), the Supreme Judicial Court stated the rule this way: “The general rule in Massachusetts is that violation of the safety statute or ordinance does not in itself give rise to a cause of action but is evidence of negligence.” A family still has to prove the violation caused the injury. The relevant licensing standards are 105 CMR 150.00, published by the Department of Public Health under M.G.L. c. 111, secs. 3, 71 and 72.

Q: Can I bring a consumer protection claim under chapter 93A against a nursing home?

A: Sometimes, and the theory has to be chosen carefully. The Attorney General has a regulation written specifically for the industry, 940 CMR 4.00, issued under M.G.L. c. 93A, sec. 2(c), which declares conduct such as improper admission contract terms, records refusals and improper discharges to be unfair or deceptive acts. But in Darviris v. Petros, 442 Mass. 274 (2004), the Supreme Judicial Court held that “the negligent provision of medical care, without more, does not give rise to a claim under G. L. c. 93A”, while noting that consumer protection statutes “may be applied to the entrepreneurial and business aspects of providing medical services”. A clinical injury on its own is not repackaged into a 93A claim.

Q: How long do I have to bring a Massachusetts nursing home claim?

A: Treat it as three years and do not wait. M.G.L. c. 260, sec. 2A provides that “actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues”, and the malpractice paragraph of M.G.L. c. 260, sec. 4 is also three years, adding that “in no event shall any such action be commenced more than seven years after occurrence of the act or omission which is the alleged cause of the injury”. Section 4’s list names “physicians, surgeons, dentists, optometrists, hospitals and sanitoria” and does not name nursing homes, and nothing read for this article resolves whether that seven year outer limit reaches a licensed nursing home. Tolling under M.G.L. c. 260, sec. 7 is narrow, reaching a person who “is incapacitated by reason of mental illness when a right to bring an action first accrues”.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This is general information about Massachusetts law, not legal advice, and reading it does not create an attorney-client relationship. Whether a particular family has a claim against a nursing home, and what it is worth, depends on facts that only a lawyer reviewing them can assess. For advice about a specific situation, call Jim Glaser Law at (617) JIM-WINS.