Insurance for Retaliation Claims Against Long-Term Care Facilities: Managing Risks Against SNFs, Directors, Employees

Retaliation claims usually mean that a resident alleges that their injury was the consequence of having made a complaint against the facility or staff members, and not merely the result of negligence. These claims may enable a higher recovery or the opportunity to improve care. Retaliation claims, whether made under common law or pursuant to anti-retaliation statutes or regulations, can put policyholders in a difficult position.

Retaliation claims are a significant and thorny example of circumstances where allegations of negligent and intentional conduct can intertwine. Unless a statute identifies certain acts that constitute retaliation per se, the patient must necessarily prove an intent to retaliate – retaliation cannot be the result of mere negligence. But ordinary negligence and intentional retaliation could manifest in factually identical ways – with intent being the only distinguishing factor. Insurers could seize on retaliation allegations to deny coverage under several exclusions, including exclusions for expected and intended conduct and for willful violations of laws or regulations. Depending on the scope of the policy exclusions, insurers could assert that otherwise insured negligence claims are excluded retaliation claims.  These issues present challenges for policyholders seeking to maximize coverage for these claims.

Listen as our renowned panel discusses strategies for managing the insurance implications of retaliation claims against long-term care providers and their directors, administrators, and employees.