When your child needs medical treatment, especially on an emergency basis, you will do what you need to in order to make that happen and get your child the care they need. When you bring your child to the emergency room in pain, or your newborn infant needs a procedure, you have papers placed in front of you, and you sign them. You might give them a once-ever, but if you are like most people, your focus is on your child’s needs, not the fine print. Unfortunately, the fine print can come back to haunt you. Especially if it contains an arbitration clause. Here’s what you need to know about arbitration clauses in your child’s medical record (or your own).
Arbitration is a form of alternative dispute resolution (ADR). It is an alternative to filing a lawsuit and resolving issues in court. Arbitration is a private process in which a neutral arbitrator, or a panel of arbitrators, listens to both sides of a dispute and makes a decision about how it should be resolved. Unlike mediation, another form of ADR, the arbitrator makes the decision rather than guiding the parties to a mutually-agreeable resolution. And unlike the traditional judicial process, arbitration is private (not a public court process) and often is binding. That means it is not subject to appeal, even if the arbitrator was unqualified or made a mistake.
In some ways, arbitration is like a trial. Both sides make opening statements and present evidence. Proponents of arbitration talk about its advantages: it is less formal, may take less time, and may be more efficient. Unfortunately, arbitration may also stack the deck against a person who has been harmed by medical malpractice, meaning that despite its advantages, it may also be less just.
Arbitration seems like an abstract concept until you apply it to a specific situation. Let’s say you have taken your child to the emergency room with flu like symptoms. In reality, she had meningitis, which the doctors should have tested for, but did not. As a result, your child died. You want to sue the hospital.
You discover that when you signed the paperwork to have your child admitted, you signed a binding arbitration agreement. You gave up your right to sue the hospital and agreed that any disputes about your child’s care would be heard by a panel of arbitrators. In a civil court trial, the judge is a neutral party. In arbitration, the arbitrator or panel is usually chosen by the health care provider that drafted the arbitration agreement. While the arbitrator is supposed to be impartial, it is easy to see how they might be biased in favor of the health care provider. And the arbitrator may not have to follow all the rules of evidence that are required in a courtroom. In some cases, the arbitration agreement specifies that the arbitration must take place in a certain location that is hundreds of miles away from where you live, causing you great inconvenience and expense. And even if the arbitrator finds in your favor, your award might be significantly less that what you would have received in a jury trial.
What’s more, it’s likely that the arbitration you agreed to is “binding arbitration.” That means you have no right to appeal if the outcome is unjust or based on a mistake. You could find yourself in a situation in which you have lost your child, and have no legal recourse if the arbitration yields a bad result.
Sneaking an arbitration agreement into a contract for medical treatment may seem unfair, but unfortunately, once you have signed it, you may be stuck with it. The U.S. Supreme Court has upheld the enforceability of arbitration agreements.
What are you supposed to do if your child needs medical care? You can’t very well refuse to use a hospital, emergency room, or pediatrician. But in most cases, you can refuse to sign an arbitration agreement. You are not required to agree to arbitration in order to receive care (or to get care for your child). The hospital or doctor probably will not tell you that you do not have to sign the arbitration clause, so you may assume that you do.
Your best strategy is to be proactive. Any time you or your child are submitting to medical treatment and you must sign papers, look for the words “arbitration,” “binding arbitration,” or “arbitration agreement.” Ask the medical staff if you must sign the agreement in order to receive care. It’s likely that the answer will be “no” and you will be able to strike out the clause.
Medical malpractice can be life-changing and caring for a child who has been injured by it can be incredibly costly. Waiving your right to sue for damages in civil court by signing an arbitration agreement can devastate your family. If you have questions about medical malpractice, or what arbitration agreements can mean, we invite you to contact our law office.
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