Virginia CLE: Contemporary issues and practice pointers in nursing home litigation: Virginia Consumer Protection Act, Mandatory Arbitration Provisions and dealing with autopsies and cause of death issues
by Jeffrey J. Downey, Esq.
Law Office of Jeffrey J. Downey, PC
8270 Greensboro Drive, Suite 810
McClean, Virginia 22102
Practicing in VA, MD and DC
I. Using the Virginia Consumer Protection Act in Long Term Care Cases
As assisted living facilities seek to compete with nursing homes, they increasingly recruit high acuity or seriously ill patients. Often these facilities engage in advertising that offers services that are analogous to a skilled care facility, i.e. 24-hour nursing supervision, on site rehabilitation and specialized Alzheimer’s wings. Sometimes this advertising is misleading or completely inaccurate. Under the proper circumstances, these misrepresentations may support a VCPA claim.
High acuity patients entering into assisted living facilities are often at risk for injury or death because the facility lacks the resources or an adequately trained staff to meet that patient’s needs. Practitioners should consider whether a VCPA claim may provide some additional grounds for relief while expanding the scope of discovery.
A. Practical Considerations, Va Code § 59.1-196 through 59.1-207
- Be selective – use the VCPA where you have clear evidence of misrepresentations as to the services being provided to the resident, and those misrepresentations are material to the neglect experienced.
- Henderson case, misrepresentations regarding ability to hydrate resident who died of dehydration. ( Exh. No. 1, written decision, #2 legal memoranda submitted by the parties)
- While case law has allowed VCPA claims against nursing homes, uniformity of skilled services and lack of promotional advertising makes VCPA case more difficult against SNFs.
- VCPA allows treble damages and attorney’s fees, but the question of whether one can recovery for personal injury damages has not be resolved by the Supreme Court.
- Two-year statute of limitation, §59.1-204.1. Cause of action accrues under §8.01-230, which applies to personal injuries.
B. Supporting Case Law
- Henderson v. Hickory Hill Retirement Community, Law CL 19-187
Nottoway County, Judge Paul W. Cella (Oct 2, 2019)(App. #1).
Court held that Plaintiff stated viable cause of action under the VCPA for neglect of assisted living patient who died of dehydration. It rejected defense argument that Virginia law governing assisted living advertisements preempted the claim. Judge Cella also overruled Defendants’ demurrer to punitive damages, Motion to Crave Oyer and Motion to strike inflammatory misrepresentations in the complaint. Defendants Motion and Plaintiff’s Opposition are included, App. #2.
- Corrales v. HHC Poplar Springs, Inc, Law CL 15000378 (Petersburg 2015)(App. #3).
Judge Teefey overruled Defendant’s Demurrer where Plaintiff had alleged consumer protection violations involving safety and risk management at a mental health facility, where Plaintiff has been allegedly sexually assaulted. Law No. CL 15000378 (Cir. Ct. Peterburg, 2015). The Court expressly rejected the argument that claim was preempted by Virginia’s medical malpractice act. Id. at p. 5.
- Humphrey v. Leewood Healthcare Center, 73 Va. Cir. 346 (Fairfax 2007)(App. # 4 ).
Plaintiff pursued a VCPA claim based on Plaintiff’s elopement from a skilled nursing facility. The Court found that nursing home care could constitute a service, sufficient to bring it under the scope of the VCPA. The Court also found Plaintiff’s claim was not barred because of nursing home regulations that authorized the conduct at issue, including the Virginia Medical Malpractice Act.
- Beaty v. Manor Care, Inc., 2003 WL 24902409 (E.D. Va. 2003)(App # 5).
The Court held that a VCPA claim was stated against an assisted living facility that failed to protect a resident from an assault. In Beaty, Defendants argued that since the assisted-living facility were regulated by the Virginia Department of Social Services, it was exempt from the VCPA under Va. Code § 59.1-199(A). The Beaty Court held that while Va. § 59.1-199(A) exempts claims arising from certain transactions that are already covered by Virginia or Federal law, it did not exempt entire industries from the VCPA. Id.
- McCaulley v. Purdue Pharma, 172 F.Supp.2d 803 (W.D. Va. 2001)
The Plaintiff alleged that a physician made misrepresentations regarding the prescription medication Oxycontin, which caused injury. Defendants argued that medical providers could not be covered under the VCPA. Despite a highly regulated pharmaceutical industry and allegations involving an actual healthcare provider, the Court found that Plaintiff had stated a valid cause of action under the VCPA. The Court noted that there was no Virginia law authorizing physicians to make misleading misrepresentations about prescribed drugs and as such, these claims were not excluded from VCPA coverage.
II. Mandatory Arbitration Provisions in Virginia
A. Practice Pointers: Mandatory arbitration provisions – the new normal
In September 2016, the Obama administration added a regulatory requirement that SNFs could not use mandatory arbitration provisions as a condition of admission to a SNF. 42 C.F.R. 483.70 (n). It should be noted that this regulation did not prevent the use of “voluntary” arbitration agreements, when not being used as a condition of admission. As a practical matter, most consumers in this context will sign whatever is put in front of them.
Effective July 2019, this regulation was repealed by the Trump administration, which also decreased regulatory fines against nursing homes. These policy changes have already had an adverse impact on nursing home residents.
- Issue Opt-Out letters early and often, Va. Code §8.01-581.12.
Even if you do not end up representing the client, you should opt out of any potential mandatory arbitration provision when doing an initial records request, if that request is being generated within 60 days of suffering an injury. Even if the client does not recall completing an admission agreement, you have nothing to lose by opting out just to be safe. Send the out-out letter by registered mail to the registered agent and fax it to the facility administrator.
Where a facility refuses to produce records, report them to the Department of Health.
- Code §8.01-581.12. allows Opt-Out after injury, an administrative appointment or qualification as a guardian.
In Virginia, residents who suffer injury can also opt out of these jury trial waivers if done within 60 days of injury, or where injury causes death, within 60 days of the qualification of an executor of the estate. Va. Code §8.01-581.12.
If you are past the 60 day opt out deadline but your client is mentally incapacitated, you could facilitate a court appointed guardianship, which would start the opt out period running anew.
- Alternatives to fighting arbitration
Where a mandatory arbitration provision is not capable of being challenged, ask defense counsel if, in exchange for waiving jury trial, you can leave case in Circuit Court to be decided by a judge. This has advantages for both sides.
- Arbitration is generally more expensive than a court proceeding – you pay the arbitration by the hour for everything he does.
- Ease of discovery and rulings on evidentiary issues makes it more attractive.
- Unfamiliarity with arbitration process or unknown arbitrator may motivate defense counsel to agree to a familiar forum.
B. Challenging the Mandatory Arbitration Provisions in Virginia
There are at least 7 basic arguments that can be asserted against the defense Motion to Compel Mandatory Arbitration:
- The proper parties (like a parent company) are not included in the arbitration agreement and thus there was no meeting of the minds;
- The Plaintiff was mentally incapacitated at the time she signed;
- The person who signed on behalf of the Plaintiff was not the lawful POA or authorized agent;
- The Plaintiff lawfully opted out of the arbitration, Va. Code 8.01-581.12;
- The arbitration agreement is enforceable for lack of consideration, especially against heirs who are pursing separate, statutory wrongful death claims.
- The agreement was procured by fraud or mistake.
- The agreement was unconscionable because it was a contract of adhesion with no real choice available to the signatory. See Taylor v. Nelson, et al., 615 F.Supp. 533 (W.D. Va 1985)(Arbitration provision between a musician and promoter was unenforceable as a contract of adhesion where it was created by the music union, there was no choice available to the promoter regarding the forum for the arbitration and the union had asserted pervasive control over the entire arbitration process). See also, Romano v. Manor Care Inc., 861 So.2d 59 (Fla. 2004); Howell v. NHC Healthcare-Fort Sanders Inc., et al, WL 465775 (Tenn. Ct. App. 2003)(Holding that arbitration clause constituted a contract of adhesion where it was buried within an admission agreement).
In light of the U.S. Supreme Court’s ruling in Marmet Health Care Center Inc. v. Brown, 565 U.S. 530, 132 S.Ct. 1201 (2012), the argument that these agreements are against public policy is no longer viable.
In Marmet the Supreme Court overturned a West Virginia Appellate Court which had invalidated a mandatory arbitration provision in a nursing home admission agreement. The Supreme Court held that a categorical rule which prohibited arbitration of any particular type conflicted with the terms of the FAA. On remand, the Supreme Court required the trial court to determine whether the mandatory arbitration provisions were “enforceable under state common law principles that are not specific to arbitration and pre-empted by the FAA.” Id., 565 U.S. at 534.
The validity of the arbitration provision is determined by looking to Virginia substantive law on contracts. Any obligation to arbitrate arises from a contractual undertaking and whether such an agreement is valid is determined by Virginia contract law. Doyle & Rynell, Inc. v. Roanoke Hospital Association, 213 Va. 489, 494, 193 S.E.2d 662 (1973). Under basic Virginia contract law there must be a meeting of the minds of the essential elements of the contract between the actual parties. Brooks & Co. v. Randy Robinson Contracting, 257 Va. 240, 513 S.E.2d 858, (1999). If the parent company or statutory beneficiaries are not parties to the agreement, that argument should be asserted. Similarly, under contract principles, unilateral mistake coupled with fraud or other inequitable conduct is proper grounds for reforming a contract. Larchman Properties Inc. v Cooperman, 195 VA. 784, 791, 80 S.E.2d 733, 737-738 (1954).
There is no presumption of validity for arbitration agreements. Rather, any presumption in favor of arbitration only arises after the determination is made that the parties agreed to the arbitration. See, TM Delmarva Power, L.L.C. v. NCP of Virginia, 263 Va. 116, 557 S.E.2d 2002 (J. Lacy, dissenting); Carson v. Giant Food Inc., 175 F.3d 325, 328 (4th Cir. 1999). In addition, if the arbitration agreement was signed after the patient suffered the injury, it should be unenforceable. See, Rison v. Moon, 91 Va. 384, 22 S.E. 165 (1895); Hendrick v. Brown and Root, 50 F.Supp.2d 527, 533-538 (E.D. Va. 1999)(Since the claim arose under a prior employment agreement that did not contain a mandatory arbitration agreement, it could not be enforced).
In situations where a resident signs a second resident agreement where the arbitration agreement was added, the Plaintiff should argue that the resident was entitled to assume that the same provisions applied, as supporting a unilateral mistake. See Benner v. Nationwide Mutual Ins. Co, 93 F.3d 1228, 1236 (4th Cir. 1996)(Insured was entitled to assume that his contract of insurance renewal contained the same coverage, unless the insurer sent a notice of modification). This argument is even more persuasive where the residents cognitive status has declined in the interim.
I am including a brief that was filed in Irle v. Beverly Law, Law CL 2018-11276 (Fairfax 2019)(Exh. No. 6). It covers many of the above arguments.
The issue of whether the Virginia opt-out provision under Va. Code 8.01-581.12 is preempted by the Federal Arbitration Act is an open question in Virginia law. The Court in Irle never reached that issue as it found that since the POA did not sign the agreement, it was void. (Exh. No. 7, attached order).
We can expect to see more defendants seeking to deprive patients of their legal rights. I have seen these agreements come up in urgent care and other healthcare facilities. If this defense is raised against you, it is important that you fully work up your opposition, or you risk making bad law. If there are no good arguments to support your opposition, do not make bad law by forcing the Court to decide the issue.
III. Dealing with a client’s death & autopsies
A. Practice Pointers
Attorneys may encounter situations where a client expires after the attorney has been contacted or retained to investigate the case. If you have a client who has sustained a hip fracture or is struggling to recover from a serious injury, like an infected wound, it is important to inform the client that you want to be notified immediately if the patient takes a turn for the worse (so you can tell them to get him to the hospital) or if the patient expires. There are important issues to consider.
- Where is the patient going to expire?
Whenever possible, your client is better served by having their loved one pass away in a hospital. Nursing home doctors who fill out death certificates are often conflicted and unlikely to put a cause of death down that implicates negligence on the part of the facility. Hospital physicians tend to be more objective and they will also have the benefit of recent medical information, labs and other diagnostics that provide a more accurate picture of the conditions that led to death.
- Should we undertake an independent autopsy?
If you have a strong liability case and believe that an independent autopsy will be favorable, you should advise your client on this option. Whether to recommend it depends on case value and the probability that an autopsy will help your case.
In my experience, detailed autopsies can complicate a cause of death analysis, providing more ammunition to the defense. They also tend to be expensive, ranging from $4,000 to $8,000 dollars. I rarely suggest such an option where my client’s loved one passes away in a hospital.
Death certificates are often generated quickly, typically on the day the patient passes away. If the certificate reflects a cause of death that is likely inaccurate, you client will have a brief opportunity to conduct an autopsy before the burial. However, you must reach out to the funeral directed immediately, explain the decision and make immediate arrangements for the physical autopsy, which can take place at the funeral home. Funeral directors can be a great source of information and they are usually motivated to help the family that is paying significant sums for the funeral services. They may have knowledge of other people who died at the local nursing home under circumstances suggesting neglect. Funeral home directors can also request an examination by the medical examiner if they believe it is warranted.
- Should the client contact the doctor completing the death certificate
It is important that the doctor completing the death certificate understand that someone is looking over his shoulder during this process. Where my client’s loved one passes away in the hospital, I may have my client contact the doctor to discuss the process and highlight the facts that are relevant to the victim’s passing. They should be prepared to have a brief conversation, first asking if there is going to be an autopsy and then explaining their views that about how the patient was impacted by the injury or neglect. The client should explain to the doctor that the funeral director is waiting on the death certificate and ask when the certificate could be expected. The clients should not discuss any potential lawsuit or that they have retained an attorney.
B. Virginia law – when do we request an independent autopsy
As the below statute makes clear, any time the resident dies from apparent trauma, accident or injury, a medical examiner should be notified. However, they have the authority, as they often do, to refuse to undertake an examination. In addition, if the healthcare provider does not believe the death was caused by trauma or injury, he or she may not make the referral.
I would recommend insisting on a medical examiner review any time the cause of death is unexpected or related to some trauma or fracture. In the first 6 months, hip fractures carry high rates of mortality from the fracture and related complications. A medical examiner will be more likely to consider all potential causes, as opposed to the immediate cause of death. In my experience, a medical examiner is more likely to reflect a hip fracture as a contributing cause of death than a treating healthcare provider, especially if that provider is affiliated with the facility that caused the hip fracture.
- Code 32.1-263 (effective Jan 1, 2020)
263(C) The medical certification shall be completed and filed electronically with the State Registrar of Vital Records using the Electronic Death Registration System within 24 hours after death by the physician in charge of the patient’s care for the illness or condition which resulted in death except when inquiry or investigation by the Office of the Chief Medical Examiner is required by § 32.1-283 or 32.1-285.1, or by the physician that pronounces death pursuant to § 54.1-2972. If the death occurred while under the care of a hospice provider, the medical certification shall be completed by the decedent’s health care provider and filed electronically with the State Registrar of Vital Records using the Electronic Death Registration System for completion of the death certificate.
263 (D) When inquiry or investigation by the Office of the Chief Medical Examiner is required by § 32.1-283 or 32.1-285.1, the Chief Medical Examiner shall cause an investigation of the cause of death to be made and the medical certification portion of the death certificate to be completed and signed within 24 hours after being notified of the death. If the Office of the Chief Medical Examiner refuses jurisdiction, the physician last furnishing medical care to the deceased shall prepare and sign the medical certification portion of the death certificate.
- Code § 32.1-283 – Investigation required where death occurs from trauma, injury accident, or suddenly when in apparent good health…
A. Upon the death of any person from trauma, injury, violence, poisoning, accident, suicide or homicide, or suddenly when in apparent good health, or when unattended by a physician, or in jail, prison, other correctional institution or in police custody, or who is an individual receiving services in a state hospital or training center operated by the Department of Behavioral Health and Developmental Services, or suddenly as an apparent result of fire, or in any suspicious, unusual or unnatural manner, or the sudden death of any infant the Office of the Chief Medical Examiner shall be notified by the physician in attendance, hospital, law-enforcement officer, funeral director, or any other person having knowledge of such death . . (emphasis added)
B.Upon being notified of a death as provided in subsection A, the Office of the Chief Medical Examiner shall take charge of the dead body and the Chief Medical Examiner shall cause an investigation into the cause and manner of death to be made and a full report, which shall include written findings, to be prepared. In order to facilitate the investigation, the Office of the Chief Medical Examiner is authorized to inspect and copy the pertinent medical records of the decedent whose death is the subject of the investigation. Full directions as to the nature, character, and extent of the investigation to be made in such cases shall be furnished each medical examiner appointed pursuant to § 32.1-282 by the Office of the Chief Medical Examiner, together with appropriate forms for the required reports and instructions for their use
C. Death Certificates Findings Inadmissible Absent Doctor’s Foundation Testimony
- Edwards v. Jackson, 210 Va. 450, 171 S.E. 2d 854 (1970)
Error to admit death certificate findings without the foundation testimony of the doctor.
- Bailey v. Adm’x v. C.V. Hunter Inc, 207 Va 123, 148 S.E.2d 826 (1966)
While death certificate is prima facie evidence of the facts contained therein,
it is inadmissible to prove cause of death.
D. Including the certifying doctor in a civil suit
In certain cases where you are confident that the cause of death analysis is complete nonsense, you may want to include the certifying doctor in your lawsuit.
I recently did this in a Maryland case where it was clear that my client died from complications resulting from a fall. (Exh No. # 8). After being rolled off the bed by a nurse aide, my client went into respiratory distress. She sustained a head injury, and after bleeding out her nose she went into respiratory distress. She died within minutes of the fall. The attending doctor noted that she died of natural causes, i.e. dementia. We filed an opposition to Defendant’s Motion to Dismiss, which is attached for your consideration. (Exh. No. 9). The case settled before the Court made a final ruling on this issue.
IV. Medical Record Requests and Aggressive Discovery
In the last two year I have encountered increasing problems simply getting the nursing home to produce their records. Many facilities now challenge POAs and create intentional barriers to obtaining the complete record set. It’s important to understand that under Va. Code § 32.1-127.1:03(D)24), it is not required that a family member have a POA to request records if the patient is deceased or mentally incapacitated. If the facility pushes back on producing records under this section, file a complaint with the Virginia Department of Health. But make sure you educate them on the law.
Also, when requesting records under the Hi Tech Act, 42 U.S.C.A. 17935(e)(1), and its implementing regulations, 45 CFR §164.524(c)(4)(i), a nursing home is only allowed to charge a commercially reasonable rate for copying and scanning the records on to a disc. However, this record request must come directly from the client or patient, not the attorney. However, the client can request that the records be sent to an attorney.
Given the increasing use of electronic records, you should request an audit trail in every case. I am including the discovery decision of Hirsch v. CSP Nova, LLC, 2018 WL 3231467, 98 Va. Cir. 286 (Loudoun 2018), where Judge Douglas L. Fleming Jr. addresses various discovery issues in the nursing home context, including the discovery of electronic records, policies, personnel and training records and complaint documents. (Exh. #10). You should cite this case in every Motion to Compel filed in Virginia as it provides a comprehensive analysis of the relevant discovery issues.
If you have additional questions or need additional reference material, do not hesitate to contact my office directly.
Jeffrey J. Downey, Esq.
Law Office of Jeffrey J. Downey, PC
8270 Greensboro Drive, Suite 810
McClean, Virginia 22102
Practicing in VA, MD and DC
 The U.S. Supreme Court has repeatedly stressed that arbitration clauses are governed by state, not federal, contract law except in those instances where state law targets arbitration clauses for treatment that is inferior to other types of contracts. E.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995) (In cases involving the FAA, courts “should apply ordinary state-law principles that govern the formation of contracts”); Volt, 489 U.S. at 474 (“the interpretation of private contracts is ordinarily a question of state law”). In addition, the Supreme Court has further held that principles of state contract law provide the primary source of protection for consumers against corporate over-reaching in cases governed by the FAA. See, Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265, 281 (1995).
Exhibit 1 – Order Consumer Protection Claim
Exhibit 2 – Plaintiff’s Opp to Demurrer & Consumer Protection Claim
Exhibit 4 – Humphrey v. Leewood
Exhibit 5 – Beathy v. Manor Care
Exhibit 6 – Opposition Memorandum
Exhibit 8 – Complaint, alleged fraudulent death certification
Exhibit 9 – Opposition Memorandum