Choosing where to resolve a health care dispute can be overwhelming at first glance. After all, in addition to determining where a case can be brought in the first place, there is the question of where it should be brought. The answer will vary based on each case’s unique situation. However, there are at least seven factors that should be considered in all cases.
1. Favorability and Availability of Precedent
Generally, the law will not meaningfully vary between federal jurisdictions or even their state-court counterparts. Nevertheless, researching how the law operates in the various courts may be the difference between winning and losing in a particular case. Whether it is because the law itself is different, the law has been interpreted differently, or there is simply a lack of favorable precedent in one jurisdiction and an abundance in another, there are many ways the law in a particular forum may compel a winning or losing result.
Similarly, particularly complex cases brought before courts with little experience in such cases may result in unexpected or disadvantageous decisions. Consequently, if there is limited precedent in a particular forum, it may be more advantageous to resolve the dispute in another court that regularly deals with the type of case presented, even if precedent in the other forum is slightly less favorable.
2. Evidentiary Considerations
Federal courts, state courts, and arbitration proceedings each may employ different rules of evidence. Federal courts are required to adhere to the Federal Rules of Evidence, while state courts and arbitration proceedings are generally free to adopt any evidentiary rules. Although the rules are often similar, which set of rules is utilized can ultimately influence a particular case’s success, especially in health care litigation.
Consider, for example, that under the Federal Rules portions of learned treatises—referring to a published work considered authoritative in its field—may be used as substantive and impeachment evidence.[1] In contrast, in some state courts, such as Florida, learned treatises may only be used as impeachment evidence. Thus, if a particular case hinges on the fact finder relying upon a learned treatise to prove or disprove a fact or issue, evidentiary considerations suggest the case would be better litigated in federal court.
3. Resolution Speed
Arbitration proceedings are favored for their speed and efficiency as compared to traditional litigation in federal and state courts. Indeed, according to a 2017 published study administered by the American Arbitration Association, cases adjudicated by arbitration take on average 11.6 months to get to trial.[2] Meanwhile, the median time in 2024 for a civil case to get to trial in federal court was 31 months.[3] This efficiency is typically the result of focused discovery, streamlined procedures, and flexible rules. Quickly resolving litigation may be particularly important to health care companies because litigation may impact a company’s valuation, which can have downstream consequences for a merger or acquisition, or ability to borrow.
That said, not all federal and state courts are created equal. Some courts are known for their speedy resolution of cases, such as the Eastern District of Virginia, which in 2024 reported taking a median time of 14.2 months from the filing of a case to the start of a civil trial.[4]
4. Convenience
Parties, witnesses, experts, counsel, and locations pertinent to the litigation may be far away from where a particular courthouse is located. This distance can make it difficult for parties to gather evidence and participate in court proceedings. In arbitration, parties typically agree on where the proceeding will take place to avoid these burdens, and the proceeding may occur in less formal locations, such as a conference room.
5. Costs
Because litigation tends to take longer than arbitration, there will be greater legal fees involved when taking a case to trial. These legal costs will further increase if a case is appealed, which is often unavailable for arbitral decisions except on limited grounds.
Additionally, costs associated with gathering evidence and traveling to court proceedings will be reduced if one courthouse is closer than another. Keep in mind that each court system may charge different fees, and fee amounts can quickly add up.
6. Privacy
Most court proceedings are open to the public, absent certain crimes and cases involving minors. In contrast, arbitration proceedings are held in private. Keep in mind, however, that private does not mean confidential. Thus, although arbitration proceedings are generally conducted behind closed doors and away from the media, parties may be free to disseminate information related to the arbitration.
7. Probable Necessity of an Appeal
If a party anticipates their success will depend upon an appeal, perhaps because of a need to overturn a statute or precedent, arbitration will not likely be advantageous because an arbitrator’s decisions are generally binding on the parties and only appealable on limited grounds, such as fraud, misconduct, or bias. In contrast, state and federal trial court decisions are routinely appealed on substantive, procedural, and constitutional grounds.
In summary, choosing where to resolve a health case dispute is an important and complex decision. An experienced health care attorney can offer thoughtful and insightful advice to help guide you through every step of the decision. Foley is here to help you address the short and long-term impacts to your company in the wake of regulatory changes and litigation concerns.
[1] See Fed. R. Evid. 803(18).
[2] Roy Weinstein et. al., Efficiency and Economic Benefits of Dispute Resolution through Arbitration Compared with U.S. District Court Proceedings, Micronomics Economic Research and Consulting (March 2017), 2, http://go.adr.org/rs/294-SFS–516/images/Economic%20Impact%20of%20Delay%20Micronomics%20Final%20Report%20%282017-03-07%29.pdf
[3] United States Courts, https://www.uscourts.gov/data-table-numbers/c-5 (download the Excel spreadsheet “U.S. District Courts – Median Time From Filing to Disposition of Civil Cases, by Action Taken” for the period ending December 31, 2024), Column K, Row 8.
[4] Id. at Column K, Row 37
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