Medical Malpractice: Patient Arbitration Agreements

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When doctors or hospitals do something wrong, they do not want everyone to know about it.  This would generate bad publicity and end up costing the hospital and doctor their “goodwill.”  

Public medical malpractice trials are just that – open to the public.  On the other hand, medical malpractice arbitration is a closed-door, private proceeding.  Arbitration is like a public case in that it has attorneys arguing for each side and a judge.  The arbitrator’s decision is final and enforceable in a public court.

Arbitration does not have a lot of the slowing factors of a public legal proceeding, such as complicated procedures, issued opinions, investigation of facts, time limitations, motions to appeal, and, most notably, juries.  The arbitrator acts as judge and jury.  This presents a problem for medical malpractice victims – they want someone who will look at their injury and sympathize, not a cold-hearted judge who follows the precise letter of the law (or worse yet, biased arbitrators who view hospitals and doctors as repeat customers). 

So, then, why do patients sign contracts with arbitration clauses embedded in there?  The most likely answer is that patients never even read the contract, and second, patients do not understand what an arbitration clause is.  Thirdly, the choice of a hospital or doctor is realistically made before they get to the arbitration clause.

Yet, patients have recourse against being forced into medical malpractice arbitration.  Arbitration clauses are common but can typically be overturned by a public court.  Patients must show that the arbitration clause was hidden in the contract in such a way that it “shocks the conscience.”  Patients can show that they had no choice but to sign, because every other hospital in the area has arbitration clauses.  They can also show that the arbitration fee is too high for low-income patients or requires them to travel to a distant state. 

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Last Modified: 02-20-2013 12:17 PM PST

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