Medical Malpractice: Patient Arbitration Agreements

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 What Is Medical Malpractice Arbitration?

In the field of medical malpractice, an arbitration agreement is a written contract between a health care provider and the patient who receives care or treatment from the provider. In the arbitration agreement, the provider and the patient agree that any dispute or claim, e.g. a patient’s claim for medical malpractice, will be subject to arbitration. This means that the patient who claims that the provider committed medical malpractice would not be able to file a lawsuit in a civil court of general jurisdiction but would be limited to submitting their claim to arbitration as provided in the contract.

Patients are usually presented with these agreements when they are admitted to a health care institution or before they receive treatment from a physician. In an arbitration, the two sides choose a supposedly impartial third party to serve as the arbitrator of the dispute. Both sides agree in the contract that they will comply with the arbitrator’s award.

They then participate in a process in which the sides present their respective cases, much as in a trial in a court of law. The arbitrator issues a decision that is final, and usually there is no right to appeal the arbitrator’s decision.

How Is Arbitration Different from a Lawsuit?

In a civil court, after a trial, either side would have the right to appeal the decision in the trial court if they believed that errors were made during the trial which, if they had not been made, might have changed the outcome. But the right to a jury trial and to appeal the verdict are given up when a person signs an arbitration agreement. However, if either party fails to comply with the arbitrator’s decision in an arbitration, the other party would be able to go to court to enforce the arbitration award.

Many health insurance plan agreements contain provisions requiring that any medical malpractice claim must be resolved through arbitration and not in court. For example, most Kaiser Permanente plans contain an arbitration provision.

If a patient is presented with a document that mentions arbitration, waiver of a jury trial or alternative dispute resolution, it is probably asking the patient to waive their right to a jury trial and agree to submit disputes to arbitration. A patient should understand what they are giving up and refuse to sign if they do not wish to use the arbitration process to resolve a potential dispute with a health care provider. One way to look at it is that a person can always agree to resolve a dispute through arbitration, but once a person gives up the right to a jury trial, they may not be able to restore it.

What Can I Do If I Do Not Want Arbitration?

If a person does sign an arbitration agreement and then regrets it, they can challenge the validity of the agreement in court. Some courts regard them skeptically in medical malpractice cases, but today many courts enforce them, depending on the circumstances. Circumstances that might lead a court to declare an arbitration agreement invalid include clauses in the agreement that too clearly favor one side over the other.

For example, an arbitration that purports to be binding on one side but not the other would likely not be valid. An arbitration clause that limits the amount of money that one side can recover from the other for medical malpractice would probably be found to lack validity. A clause that requires the patient to file an arbitration claim within 30 days of their injury would also probably not be enforced, because a person may not recognize that they have been the victim of malpractice so quickly after receiving treatment. But failing a finding that a particular arbitration agreement is grossly unfair, a court today may well enforce it.

Some states have passed laws that specify how arbitration is to proceed in medical malpractice cases. In these states, if an arbitration agreement complies with those laws, courts will enforce them. However, arbitration clauses that fail to comply with state law regarding medical malpractice arbitration are less likely to be enforced. For example, a state law might require an arbitration clause to clearly state that the patient does not have to sign the agreement in order to receive treatment. If a clause should fail to comply with that requirement, it would probably not be enforced.

Is a Trial Always Better Than Arbitration?

There are a number of pros and cons to arbitration as compared to trial by jury. On one hand, an arbitration is a private, closed-door process that only the parties and their attorneys are allowed to attend. Jury trials are public, although as a practical matter, few trials are ever attended by members of the general public and very few attract media attention.

Arbitration is similar to a trial in that the attorneys for the parties present evidence and argue their respective sides of the dispute. There is a decision-maker, who is called an arbitrator. The arbitrator’s decision is final and enforceable in a court.

A case for malpractice in a court of law can take years to reach a conclusion whereas an arbitration may proceed more quickly. If a case goes to trial and the malpractice victim elects to have a jury, then simply questioning potential jurors and empaneling a jury can take days.

On the other hand, some people believe that a victim of malpractice is more likely to get a better result from a jury than from an arbitrator. They think that a jury of average people such as themselves is more likely to sympathize with their plight than is an arbitrator.

Unfortunately, a patient may sign an arbitration agreement without even knowing that they have done so or without having reflected on whether they think it is more or less advantageous. A patient should take the time to read all documents that are presented to them by health care providers. If a person already thinks that an arbitration is a preferable way to resolve disputes, then they are free to sign an arbitration agreement.

On the other hand, as mentioned above, a patient might reject an arbitration agreement with the understanding that if the health care provider really wants arbitration and if the patient’s attorney agrees that it would be a good way to resolve a dispute, the patient can agree to it at a later time.

Or, another strategy is to ask about this at the time when treatment or a procedure is scheduled. The patient can ask the provider then whether they plan to present the patient with an arbitration agreement and whether the patient has to sign it or really has a choice in the matter. If the provider insists on an arbitration agreement, the patient may wish to seek their treatment or procedure elsewhere.

Do I Need a Lawyer for Medical Malpractice Arbitration?

If you are the victim of medical malpractice and have signed an arbitration agreement, you definitely want to consult an experienced personal injury attorney to learn what your options are.

Your lawyer can advise you as to whether they believe that arbitration of a claim for medical malpractice is advisable or not. It may be possible to avoid an arbitration agreement.

A personal injury attorney may be able to avoid being forced into arbitration of a medical malpractice claim even if the patient signed an arbitration agreement. A court might not enforce an arbitration agreement if it is challenged on certain grounds. For example, the patient might be able to show that an arbitration clause was hidden in documents presented to them by a health care provider so as not to attract the patient’s attention. Then the patient could argue that it “shocks the conscience,” and enforcement would be unfair.

Or, a patient could show that they had no choice but to sign, because every hospital in the area requires agreement to arbitration of disputes as a condition of admission. Or, they might be able to show that there is an exorbitant fee for the arbitration or that it requires them to travel to a distant state.

So, you want to work with a lawyer to review your options and all of the pros and cons of arbitration versus a jury trial. Do not assume that you must proceed with an arbitration before you have reviewed your situation with an experienced personal injury attorney.

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