Chapter 2. Common Issues in Long-Term Care Litigation

• Pages: 17-33
• Author: Caldwell G. Collins and Brittany Bartley Simpson

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2

COMMON ISSUES IN LONG-

TERM CARE LITIGATION

Caldwell G. Collins and Brittany Bartley Simpson

Long-term care litigation involves an innately high-risk resident population with

multiple preexisting comorbidities. Plaintiffs commonly allege more than one

harm, and the operative residency can extend over months or even years, unlike a

traditional one-event medical malpractice setting wherein, for example, a sponge

is left in a surgical patient. Because of these unique challenges, the theme of this

chapter is the highly fact-specific nature of long-term care litigation, which requires

a specialized knowledge of the medical issues that arise in a medically fragile, often

bed-bound, group.1 It begins with a discussion of two threshold matters that often

arise in long-term care litigation: arbitration agreements and the quality assurance

privilege. It then moves to sources of liability, beginning with facility operations

and ending with resident-specific considerations.

Arbitration Agreements

Alternative dispute resolution and arbitration agreements are common in the

long-term care setting. Determining whether an enforceable arbitration agree-

ment exists is an important step in the early litigation process, and disagreements

over arbitrability can prove to be hearty battles.

The Federal Arbitration Act

The Federal Arbitration Act (FAA)2 was enacted pursuant to the power of Con-

gress to regulate commerce “to ensure judicial enforcement of privately made

agreements to arbitrate.”3 Its purpose is to relieve congestion in the courts and to

provide parties with an alternative method for dispute resolution that is speedier

1. This chapter does not contain an exhaustive list of issues that might arise in the long-term care

context. For example, it does not cover Medicare fraud or worthless services cases under the False

Claims Act.

2. 9 U.S.C. § 1 et seq.

3. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 219–20 (1985).

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An Introduction to Tort-Based Healthcare Litigation

18

and less costly than litigation.4 By enacting the FAA, Congress established a strong

federal policy to support arbitration agreements, requiring that courts “rigor-

ously enforce agreements to arbitrate.”5 Its passage represents Congress’s effort to

“reverse the long standing judicial hostility to arbitration agreements . . . and to

place arbitration agreements upon the same foot as other contracts.”6

Most states have also passed arbitration acts, many tracking the language of

the FAA.7 The language of a specific arbitration agreement may dictate whether

the FAA applies to the agreement’s enforcement and interpretation or whether

state law applies. However, if the arbitration agreement is silent, there is an argu-

ment that the FAA applies, as long-term care facilities have myriad connections to

interstate commerce (e.g., participation in federally funded Medicare and Med-

icaid programs, procurement of goods and supplies from other states, etc.), and

therefore agreements related thereto may “involve interstate commerce” and fall

within the bounds of the FAA.8

If a party files a complaint in arbitration or a motion to compel arbitration9

and the opposition intends to contest the agreement, enforcement issues usually

involvedepending on the specific jurisdictionthe scope of the arbitration

agreement, the signatory’s authority or capacity to enter into the arbitration agree-

ment, the agreement’s substantive conscionability, and the agreement’s procedural

conscionability.

Scope of the Arbitration Agreement

If a signed arbitration agreement exists, counsel must first determine whether the

claim at issue is within the scope of that agreement. This requires a close read-

ing of the language of the agreement itself. Is it limited to certain types of claims?

Does it cover all claims that arise between a resident and a long-term care facility?

Does it apply to the resident’s multiple stays, or is it specifically limited to certain

dates? Arbitration agreements that are phrased in terms of all claims or controver-

sies relating in any way to the resident’s stay(s) at the facility will typically cover

medical malpractice claims of any kind. Before filing a motion to compel arbitra-

tion, counsel must ensure that she has a valid argument that the claims at issue fall

within the agreement’s terms.

4. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 278 (1995); Gilmer v. Interstate/John-

son Lane Corp., 500 U.S. 20, 31 (1991); Southland Corp. v. Keating, 465U.S. 1, 7 (1984).

5. Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987) (citations omitted).

6. Gilmer, 500 U.S. at 24.

7. See, e.g., L. R. S. A . § 9:4201 et seq.

8. See, e.g., Owens v. Nat’l Healthcare Corp., 263 S.W.3d 876 (Tenn. 2008).

9. W hen moving to compel arbitration, parties may want to move for a stay of merits discovery

pending resolution of the arbitration issue (which may itself require pointed discovery before a

hearing).

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