Health Care

By: Felicia Rovegno

St. John's Law Student

American Bankrupcty Institute Law Review Staff

Following a growing trend, the California Bankruptcy Court in In re Valley Health System

[1]

declined to appoint a patient care ombudsman under section 333(a)(1).

[2]

  Although the “shall order the appointment … unless the court … finds” construction of section 330(a)(1) suggests that patient care ombudsmen should be the rule, courts appear to be avoiding such appointments.

[3]

  Consistent with this approach, the Valley Health opinion appears to place the burden on the proponent of the appointment to show that an ombudsman is needed because of specific problems at the facility.

[4]

  More importantly, the Court overlooked the arguments that an ombudsman functions as an advocate to warn the court if patient care is being compromised and that because financial concerns drove the facility into bankruptcy, patients are placed at a greater risk.

[5]

Instead, the Court considered the “nine non-exclusive factors”

[6]

articulated in In re Alternate Family Care

[7]

and four other factors listed

[8]

to hold that a patient care ombudsman was not needed under “the specific facts and circumstances of this case.”

[9]

  Applying the nine factor balancing test, the Court found that two factors favored appointment of an ombudsman, while seven factors weighed against the appointment.

[10]