Waiving the Right to Litigate a Medical Malpractice Claim

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What is a Waiver of the Right to Litigate?

Waiving the right to litigate a medical malpractice claim means if you were injured as a result of medical malpractice, you do not have the right to take your healthcare provider to trial.  Patients often waive their right to litigate when their contract to provide medical services contains a provision for arbitration instead of litigation. An arbitration agreement still allows a patient to hold the healthcare provider responsible for injuries sustained, however, the issue of responsibility is decided by an abitrator, instead of going to trial.   However, general arbitration agreements usually do not constitute a waiver of the right to litigate.  A waiver of the right to litigate must be stated in clear and unmistakable language.   

Can I Be Required to Waive the Right to Litigate?

Many healthcare providers include the waiver as part of the contract to provide medical services, leaving the patient with only the choices of accepting the waiver provision or finding a different healthcare provider.  In fact, many patients do not realize they have waived the right to litigate until they are injured and try to sue their healthcare provider.   In some states, patients who receive healthcare from a health maintenance organization through an employment-based benefits program may have their right to litigate waived by the employer.  However, as with an individual health plan, the employee has the ability to opt out of that particular healthcare provider's service entirely.   

Do I Need a Personal Injury Attorney?

The rights and procedures under arbitration are very different from those under litigation.  If you have a problem regarding a waiver of the right to litigate a medical malpractice claim, it is best to speak to a personal injury attorney with experience in arbitration.

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Last Modified: 03-18-2014 02:59 PM PDT

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