By Steven G. MehtaSteve Mehta


In many cases involving nursing homes and healthcare providers there are often many different healthcare defendants.  One lawsuit may include a chain of treatment that involves a skilled nursing facility transferring a resident to a hospital.  That hospital later transfers to a separate skilled nursing facility, which may eventually transfer to another acute care facility.  Often, one or more of the many defendants will try to compel arbitration.  The California Court of Appeal has recently addressed how courts should handle this issue in the case entitled Birl v. Heritage Care, LLC,  2009 WL 608340 (Apr. 8, 2009, Ct. App. 2nd District).


In Birl, the court ruled that a Skilled Nursing Facility defendant could not compel arbitration because there was a possibility of conflicting rulings of law or facts with the hospital and physician co-defendants. 


In Birl, the case involved claims of wrongful death and elder abuse by the family of decedent Jerome Birl, who had undergone surgery at Kaiser Permanente Hospital.  A month later, he was transferred to a skilled nursing facility (Briar Oak), where he declined in health.  He was transferred to an acute care facility (Fountain View) and ultimately was transferred to the Heritage facility.  His condition continued to deteriorate and he was then transferred to Harbor-UCLA, where he later died.  The plaintiffs filed suit against the healthcare entities and the physicians.   


Heritage and Kaiser had arbitration agreements.  However, Briar Oak and Fountain View did not.  Both Kaiser and Heritage filed petitions to compel arbitration.  Heritage, however, filed a petition only as to limited causes of action.  Both petitions were denied.  Heritage appealed the decision. 


The court ruled that there was a possibility of conflicting decisions as to facts or law and therefore denied the petition. 


Relevant Rulings were as follows:


  • Generally if there is a valid arbitration agreement, which in this case there was one signed by the wife, who had power of attorney, the public policy requires courts to order parties to arbitrate.
  • The Court applied an exception under Code of Civil Procedure 1281.2 where there is a possibility for conflicting rulings as to facts or law where one of the parties is also a party to a pending action with a third party, arising out of related transactions.  The court found that the treatment involved numerous possible defendants — including physicians who had overlapping and concurrent roles and responsibilities. 
  • The wrongful death claim (which was not submitted to arbitration) was also arising out of the same series of facts and law.
  • Plaintiffs themselves are also third parties to the arbitration agreement with Heritage, as to causes of action brought in plaintiffs’ individual capacities, within the meaning of section 1281.2, subdivision (c). 


This ruling can have significant implications for nursing home and elder abuse litigation in several ways. 

  • Many petitions to compel may end up getting denied because most elder abuse, nursing home, and healthcare cases can have multiple defendants.
  • The parties may find themselves making more effort to settle the cases because the complexity of the cases may increase with the number of parties.


  • It is also possible that the parties may conduct extensive discovery earlier in the litigation to ascertain the facts relating to similarity of law and circumstances.


If you would like to get a copy of this decision, please feel free to contact Steve Mehta and ask him to email the decision to you.