Nursing Home Litigation Basics

Nursing home litigation is very difficult. First, the medicine involved is very particular to the elder population. Second, the laws such as federal and state regulations are unique to nursing home cases. Finally, there are many traps such as improper experts and suing the wrong entity.

Avoid arbitration

Plaintiff’s counsel will need to file an Objection to Arbitration with the court. If the plaintiff does not oppose the motion, any objections are waived. McNeil v. Black, 61 N.C. App. 305 (1983). Additionally, the plaintiff will need to argue standard contract defenses. Such defenses include: lack of capacity, lack of authority, substantive and procedural unconscionability, etc. If the defense motion to compel arbitration is denied, then it is immediately appealable. Pick an arbitrator that has nursing home litigation experience. As long as such conflicts are disclosed, there is favorable North Carolina case law for defeating a challenge to our selection. Thomas v. Howard, 51 N.C. App. 350 (1981) In federal court under the FAA, there is a split in authorities among the different jurisdictions but the Commonwealth case is the lead case. Commonwealth Coatings Corp., v. Continental Casualty Co., 393 U.S. 145 (1968) There is no appeal on the merits of the award.

Don't screw up the case

First, make sure that your experts are prepared and qualified. The expert will need to comply with NCGS 90-21.12, Rules 9(j) and 702. First, per NCGS 90-21.12, the expert will need to be familiar with the standard of care for that particular community during that time period. In all nursing homes, you need to turn and position patients- period. However, the North Carolina rules require that the expert specifically know the local standard and apply it. Second, per Rule 9(j) the expert must be reasonably expected to qualify as an expert and willing to testify that the nursing home breached the standard of care. You must put this in the complaint. Third, the expert will need to comply with Rule 702. The expert will need to have spent the majority of her time the year prior to the injury either treating patients or teaching. Fourth, sue the right corporations- it is a shell game.