PrintAt first, it seemed like the ending would be a disappointing, too-familiar conclusion: A nursing home that had cared for a man during the final year of his life would be unable to collect its $45,000 bill.
The patient died in 2007 and had no assets. While his widow owned a home in Springfield, the husband had never had an interest in the property.
The prospects dimmed even further when Mashpee attorney Thomas P. Carpenter started digging on behalf of his nursing home client and hit a law enacted in 1910 - G.L.c. 209, §7 - that said a husband could be held accountable for his wife's "necessaries" - interpreted by courts to mean everything from clothing to medical care - but a wife could only be responsible for up to $100 of her husband's care.
"It's always the nursing home that is left holding the bill. No one wants to pay for care, but, frankly, the nursing home shouldn't be left holding the bag," Carpenter said.
Instead of saying, "Geez, it looks like we're out of luck," Carpenter renewed his efforts. "It seemed like a clear-cut debt: The husband was put in a nursing home, and now the wife is saying you can't come after me. I found the old statute, but I kept digging. "
Carpenter uncovered another statute enacted in 1974, G.L.c. 209, §1, that established that both spouses can be held accountable for the other's "necessaries. "
In a case of first impression, Superior Court Judge Constance M. Sweeney ruled last month that the two statutes are "so repugnant to and inconsistent with each other" that the 1974 legislative measure constituted an implied repeal of the 1910 law.
It was a major victory for Carpenter and the nursing home and followed an early setback and months of research. Now, lawyers who specialize in estate planning say the decision could have dangerous ramifications for their clients.
The six-page decision is East Longmeadow Management Systems Inc. v. Wilson, Lawyers Weekly No. 12-288-09.
'A little demoralized'
After Carpenter uncovered a narrow crack in the law, he set about trying to widen it into a winning argument.
"I knew the [1910] law was still valid, it was still on the books, but I thought it would be ripe for a challenge," he said. "I knew that I was in better shape, but also that there was a problem because we had two statutes that were completely in conflict. Both were on the books, both were valid law. "
His initial strategy was simply to challenge the earlier law as unconstitutional. On its face, it seemed obviously antiquated.
"It was so unfair that, in the year 2009, a wife is only liable for $100 for her husband," he said. "It was obviously out of date. It was passed before women even had the right to vote. I said to myself, 'There has to be something I can do to challenge this. '"
Armed with an argument and an opinion, he went into Superior Court and sought to attach the widow's house, hoping to lay the groundwork for a quick judgment for his client.
He lost.
"I was a little demoralized," he recalled. "We went through the issues, lengthy briefs and oral arguments, and the judge just said 'no. '"
Worried that his case had crumbled before it began, Carpenter slowed down.
"I let it go as long as I could just to see if something positive might happen," he said. "Maybe an offer would come from the other side. "
In the meantime, he hunted down every decision he could find and researched how other states had addressed the same questions. He found that jurisdictions had been steadily moving toward equal treatment of husbands and wives, a trend that seemed consistent with Massachusetts' legislative history.
He also found caselaw to support his broad interpretation of the word "necessaries": A decision from the 1930s held that necessaries include hospital care, and the court ordered a husband to pay his wife's medical bills. Carpenter then uncovered an unpublished decision from 1994 that concluded that nursing home care was "necessary" under the 1974 statute.
"I just wanted to look at everything I could get my hands on," he said. "I waited as long as I could, and then said I couldn't wait any longer and I filed for summary judgment. By this point, I had more cases with me [and] information about other jurisdictions that I could show the court. "
He also wanted to keep the pressure on the opposing side.
"There were really no questions of material fact in the case," Carpenter said. "If there had been an insurance policy, [the widow] would have turned that money over. At the very least, I thought I could get a partial summary judgment. "
Legislative intent
But the other side was waiting. Attorney Barry M. Ryan of Springfield argued that the court should not overturn a valid statute based on nothing more than an apparent contradiction. (Ryan did not return calls seeking comment.)
Indeed, the Legislature had amended the 1910 statute in 1979 and left the key language intact, suggesting it intended to protect widows from being held responsible for their husbands' care.
"I thought that was his best argument," Carpenter said, "because we had these two inconsistent statutes on the books, one passed in 1910, another in 1974, but they amended [the earlier one] in 1979 and kept the same language, so it must have been there for a reason. "
On the day the case was called, it was the last argument of the session.
"They knew it was going to be the longest argument," Carpenter explained. "We had a robust argument, and it was great give-and-take between myself and the other attorney and the court. We were all just going at it. I think it was one of the most entertaining oral arguments I've had. "
In the end, the contradiction between the two statutes forced the outcome, bolstered by the constitutional question of whether men and women could be treated differently, Carpenter said.
"We still had the new statute passed in 1974, and there really was a constitutional problem," he said. "When you look at the decision, in some ways it is a case about equal rights between men and women and husbands and wives. In some ways it is an acknowledgment of the fact that women have gained greater power and status in society, not just greater power, but also more financial responsibility. "
Pandora's box
But trusts and estates lawyers warn that the decision is dangerous and could undo a long history of estate planning.
If debtors are allowed to make an end-run around Probate Court and go after spouses in Superior Court, it will open Pandora's box, said David J. Correira of Correira & Iacono, which has offices in Swansea and Boston.
Correira said that sections 1 and 7 of Chapter 209 are not necessarily in conflict with other; Section 1 relates to property and property held as tenants by entirety, while Section 7 relates to debts.
"It's not as if Section 1 is 200 pages away from Section 7, so in terms of legislative history, I find it hard to believe that the Legislature enacted Section 1 without knowing Section 7 existed," Correira said. "I think it's just a matter of Section 7 needing clarification. I don't think it is void, and I don't think the Superior Court judge has the ability to say it is void, though perhaps the Appeals Court or the Supreme Judicial Court does. "
Correira said Sweeney "has almost guaranteed an appeal. This is definitely a case that you want to see what happens, whether the Legislature acts to clarify Section 7 or whether or not [the lawsuit] goes any further. But it seems to me that the best result of this case for all parties - including the rest of the bar - is that it gets settled and stays where it is. "
Thomas R. Mullen, an elder law attorney in Quincy, said he agrees with the decision but that it reinforces the point that attorneys need to advise their clients to apply for Medicaid as soon as possible.
"I don't necessarily look at this as a nursing home case," he said, "but as a case in the Medicaid world. "
But he said he would want to know exactly what role the nursing home played in the case: Did it counsel the family to apply for Medicaid? Was the widow aware of the bills? Was she emotionally capable of coping?
Question for trial
Sweeney granted summary judgment on the question of whether the widow can be liable for her husband's care but said material facts remain in dispute as to the expenses owed and on the issue of possible insurance coverage, leaving those questions to be settled at trial.
Asked whether he is worried that a sympathetic jury might side with the widow despite the judge's ruling, Carpenter said he hasn't given that possibility much thought.
"Liability has been established, so the only issue is establishing what the damages are," he said. "If the jury came back with a goose egg, I don't know how they would do that. I suppose I would have other avenues at that point. "
Already, Carpenter said, he is using the theory of liability in two new cases.
"I think [this ruling] is going to be significant from my point of view," he said. "This decision will give me one more piece of ammunition for my arsenal, which is a good thing. "
