Arbitration Agreements an…

Getting medical treatment typically involves a lot of paperwork: medical histories, insurance forms, HIPAA releases, and various consents. Buried within all of that paper is often something called an arbitration agreement. You have probably signed at least one arbitration agreement while seeking medical care, but you may not even realize it until you try to make a claim against a doctor or hospital. At that point, the attorney on the other side may point out that you signed an arbitration agreement. What exactly does that mean, and how does it affect a medical malpractice case?

What is Arbitration?

Arbitration is a form of “alternative dispute resolution,” or ADR. Like other forms of ADR, arbitration is an alternative to litigation and having your dispute resolved in the courts. Mediation is another form of ADR that you have probably heard of. It is often confused with arbitration, but it is a different process.

In some ways, arbitration resembles a trial. There is an arbitrator (or panel of multiple arbitrators) who occupy a role like a judge would in a courtroom. Like a judge, an arbitrator is supposed to be neutral and is not supposed to favor either side. Just like in a trial, there are opening statements, presentation of evidence, witness testimony (including expert witnesses in many cases), and closing arguments.

The arbitrator or panel listens to all the evidence and makes a decision in the case. Typically, in medical malpractice arbitration, that decision is binding, meaning that it is final and cannot be appealed by either side.

Advantages of Arbitration in Medical Malpractice Cases

There are a number of advantages to arbitration for medical malpractice claims, for both medical providers and patients. For one thing, arbitration is private; it is held in a private office or conference room, not open court. And unlike court documents, which are public record, records of the arbitration are typically not available to anyone except the arbitrator, the parties, and their attorneys.

Arbitration is also generally more informal than court hearings, which may mean that they are less stressful and intimidating for participants. The arbitration process tends to be quicker and more efficient than the litigation process, too. That can be important for people who just want to have their claim resolved one way or the other, get closure, and move on with their lives.

Because the parties need to do less to prepare for arbitration, and there are no pre-trial motions as there often are in a court case, arbitration usually costs less than litigation. While arbitration may be less costly than a trial, that is primarily an advantage for the medical provider; people who were injured by medical malpractice generally do not have to pay attorney fees in a lawsuit unless and until there is an award in their favor.

Disadvantages of Arbitration for Medical Malpractice Victims

The primary downside of arbitration for malpractice victims is that it is usually (though not always) binding. Without the opportunity to appeal, there is no chance to correct the finding of an arbitrator who has made a mistake or who is simply biased.

While most arbitrators do strive to be neutral, bias can creep in. Depending on the arbitration agreement, a doctor or hospital may have more input into choosing the arbitrator than a malpractice victim, and they almost certainly know more about the arbitrators available. In addition, an arbitrator who hopes to be called upon to arbitrate future medical malpractice cases may have a conscious or unconscious bias in favor of the party that is likely to use their services in the future.

The efficiency of the arbitration process is a benefit, but the flip side of that benefit is that streamlining the process can disadvantage malpractice victims. Unlike with litigation, there is no extended discovery process in which both sides can request and gather information and documents from the other party. Since the care provider tends to have most of the records in a malpractice case, the absence of discovery can put claimants at a disadvantage.

There is often less transparency in the arbitration process than in litigation. While testimony and other evidence is presented to the arbitrator, they might not disclose, in writing or otherwise, what they based their decision on. That may give a victim whose claim was rejected less closure and satisfaction than they were hoping for.

Even if an arbitrator makes a decision in favor of a medical malpractice victim, the outcome may not be as favorable as the victim would have received in a jury trial. Medical malpractice arbitrators are often retired judges or medical professionals. They may have a tendency to focus on easier-to-verify economic damages like medical bills and lost wages. Juries are often more sympathetic to how an injury has affected a patient’s quality of life, and may be more likely to award damages for pain and suffering.

Is it Possible to Get Out of an Arbitration Agreement?

At the time you signed an arbitration agreement, you may not have noticed it buried in the fine print, and you were probably more focused on your need for medical treatment than on how you would resolve a dispute if that treatment went poorly. It is not easy to get out of an arbitration agreement, but under some circumstances, it is possible.

Your best chance of getting out of an arbitration agreement so that you can file a lawsuit is if the agreement does not comply with the laws about fairness and arbitration agreements. For instance, you might be able to void an arbitration agreement if it gave you an unfairly brief window to make a claim, like within 30 days after your injury.

Unfortunately, if the agreement you signed meets legal requirements, you will probably be required to arbitrate your case. Just because you are not going to trial, though, doesn’t mean that you shouldn’t have the best possible legal representation. If you have questions about medical malpractice and arbitration agreements, we invite you to contact The Fraser Law Firm P.C. to schedule a consultation.