Will My Medical Malpractice Claim Go to Arbitration?

Most patients who file medical malpractice claims can expect a jury trial in state court (assuming their case doesn't settle beforehand). But some patients are contractually bound (often unknowingly) to arbitrate their medical malpractice case rather than go to court. In this article, we'll cover:

• why medical malpractice cases often go to arbitration
• how arbitration works in a medical malpractice case, and
• how patients might avoid arbitration and take their medical malpractice case to court.

What Is Arbitration?

Arbitration is a method of resolving legal disputes without going to court. Mandatory arbitration (where the parties agree in advance that certain disputes will be settled through arbitration) is increasingly common in:

• employment contracts
• consumer contracts, and
• contracts between patients and health care providers.

Even without a mandatory arbitration clause in a contract, parties can always agree at the time of a dispute to submit the matter to arbitration—this is known as voluntary arbitration. Arbitration of either type (mandatory or voluntary) can be:

• "binding" (final, which means that the winning side can ask a court to enforce the decision), or
• "nonbinding" (advisory, which gives the parties the right to go to court and present their case anew).

Why Do Medical Malpractice Claims Go to Arbitration?

Imagine you're visiting a new doctor's office or signing up for new health care plan. You're handed a stack of forms, including a health history questionnaire and a HIPAA form. Another might be an agreement (contract) to submit all medical malpractice disputes to binding arbitration. Would you sign it?

In most instances, medical malpractice claims go to arbitration because patients do end up signing "arbitration agreements," giving up their right to file a medical malpractice lawsuit in court, often before they've seen a doctor. For example, many large health care plans (like Kaiser Permanente) require patients to sign arbitration agreements as a condition of membership.

What Happens At a Medical Malpractice Arbitration?

Medical malpractice arbitrations (whether they're mandatory or voluntary) are similar to civil trials, but tend to be less formal. The parties give opening and closing statements and present evidence, including testimony from medical experts.

Some rules of evidence, like rules against "hearsay" (which prohibit witnesses from testifying about what other people told them or what they heard other people say), might be relaxed.

Instead of a judge or a jury deciding the outcome, a private arbitrator (or panel of three arbitrators) determines:

• whether the patient has proven that the health care professional committed medical malpractice, and if so,
• how much compensation ("medical malpractice damages") the patient should receive.

Do Patients Have Any Protection From Medical Malpractice Arbitration Agreements?

Many states have laws safeguarding patients in medical services contracts. Some states, like California, require arbitration clauses to appear on the contract—two times—in bold type to alert patients that they're giving up their right to a jury trial on any malpractice claim. (Cal. Civ. Procedure §1295.)

Some states prohibit health care providers from asking patients to agree to arbitrate before they've received any actual treatment.

A few states, like Florida, allow courts to require nonbinding arbitration in malpractice cases when one party requests it. Fla. Stat. § 766.107. Nonbinding arbitration allows either party to reject the arbitrator's decision and demand a trial. But some parties accept the arbitrator's decision and settle their cases.

Can Patients Avoid Medical Malpractice Arbitration?

The best way for patients to avoid arbitration is to not agree to it in the first place. Patients can shop around and choose doctors and health care plans whose contracts don't include arbitration clauses.

Patients who agree to arbitration but then quickly change their minds might have an opportunity to get out from under the clause. Some states require health care providers to allow patients to rescind (cancel) contracts within 30 days or so of signing, and require that the contract itself advise the patient of this window. Contracts that don't comply with state law are not enforceable (legally binding). Courts, not arbitrators, typically decide whether an arbitration clause in a contract is enforceable.

What about patients who think they have to sign an arbitration agreement before they can see a doctor at an urgent care clinic? Or patients who hastily sign forms and then want out of agreements they didn't carefully consider? Courts tend to favor arbitration as an efficient and cost-effective way to resolve health care disputes, but there are limits. When deciding whether to enforce an agreement to arbitrate malpractice claims, courts generally consider:

Contract law in the patient's state. Courts usually uphold agreements that comply with state laws dictating how arbitration should work in medical malpractice cases. For example, California courts have consistently found that Kaiser Permanente's binding arbitration agreements are enforceable because they comply with California law. But patients in other states, like Hawaii, have successfully challenged Kaiser's agreements.

Patients can raise general contract defenses (like fraud, duress, or unconscionability) to invalidate arbitration agreements. Red flags include:

• contracts that bind only one side to arbitration
• limits on damages available to patients
• unreasonable time restrictions for patients to file claims, and
• procedural hurdles that delay arbitration to reduce potential damages.

When, relative to treatment, did the patient sign the contract? Courts generally won't enforce arbitration agreements that patients sign before receiving medical care in hospital emergency departments and urgent care clinics.

How broad is the agreement? Courts sometimes have to decide who is bound by arbitration agreements and for how long. For example, are heirs in wrongful death actions stuck with arbitration agreements signed by their deceased relatives? Is a patient who signs an arbitration agreement during in an initial visit with a primary care doctor still bound by the agreement two years later? What about 10 years later? Courts look to the language of the agreement and laws that vary from state to state to decide these difficult questions.

Did the provider act intentionally or even criminally? Typically, arbitration clauses are invalid when patients' claims involve intentional or criminal conduct by the provider. For example, a patient alleged she was sexually assaulted by an orderly at Kaiser. She sued Kaiser for negligence. Citing its agreement with all patients, Kaiser tried to compel arbitration. The California Supreme Court ruled that because the orderly's alleged conduct fell outside the scope of his employment, the parties' arbitration agreement didn't apply. The patient was able to file her lawsuit in court. Victoria v. Superior Court, 40 Cal.3d 734 (1985).

Getting Help From a Medical Malpractice Lawyer

If you have questions about whether you should sign an arbitration agreement, talk to a lawyer who can explain the pros and cons. If you've already signed an arbitration agreement and you've been harmed by a health care provider's mistake, a lawyer can explain whether the agreement is legally enforceable. Learn more about working with a medical malpractice lawyer.