Tuesday, February 5, 2008

Arbitration

Unfortunately, more and more patients are being asked to sign arbitration agreements when they go to see their doctor. It is not uncommon for patients to be completely unaware of what they are being asked to sign. The agreements are simply put in the stack of documents the receptionist gives to new patients. Unsuspecting patients see a complicated form with a bunch of legal terms on it and they assume it is just a standard form that doesn't warrant closer attention. They quickly scan the document to find the signature line and then move on to the next form. Little do they know they have just signed away an important constitutional right.

Now, if something goes wrong with their medical treatment they no longer have the option of having their case heard by a jury of their peers. They are prevented from going to court and must now have any disputes heard by a panel of professional arbitrators.

While arbitration can be a worthwhile method of alternative dispute resolution, it should not be forced upon patients in such a way that they do not even know they are agreeing to it. If arbitration is truly a better way to resolve disputes between patients and health care providers, then there is no reason to believe that the parties wouldn't reach that conclusion on their own, after an injury occurs. There is simply no justification for tricking patients into signing away constitutional rights before an injury has even occurred.

It should also be noted that arbitration forces patients to incur significant expenses that would not exist if they were allowed to try their case in front of a judge and jury. Arbitration panels are made up of three attorneys who each charge between $250 and $350 an hour. That means that an arbitration hearing could easily cost $15,000 to $20,000 just in arbitrator costs. This is an expense that would not exist if the parties were permitted to resolve the dispute in court.

Another serious problem with arbitration of medical malpractices cases in Utah is that the pool of possible arbitrators is very shallow. There is only a handful of people qualified and willing to do this work and the same names show up on nearly every case. The problem with this is that the insurance company representing the doctors gets to select one of the three arbitrators and has veto power over a second member of the panel. That means that if someone in this limited pool of potential arbitrators wants to continue to make a living, they cannot afford to make the insurance company mad. Insurance companies are only happy when they win. If an arbitrator renders a decision against an insurance company he can be sure that company will not agree to hire him again. While most, if not all, arbitrators are respectable and honorable, this sort of influence cannot be ignored. Individual patients simply do not have the power and influence of large insurance companies. The result is that plaintiffs usually lose in arbitration.

The good news is that if you have signed an arbitration agreement, and no injury has yet occurred, you can rescind the agreement. All you have to do is send a letter to the doctor or clinic where you signed the agreement and inform them that you are choosing to rescind it. It is against the law for a doctor to refuse to treat you simply because you do not want to participate in arbitration.

If you have signed an agreement and you think you already have a malpractice case it may still be possible to void the agreement. You should contact an attorney experienced in medical malpractice arbitrations and they can look at the agreement to make sure it complies with the law. If the form of the agreement is not what the law requires then it may be possible to pursue your case in court.

3 comments:

cator said...

For a lot more news about all kinds of cases of Alternative Dispute Resolution. The National Arbitration Forum is one of the world's leading providers of alternative dispute resolution services, including arbitration and mediation. It's worth checking them out.

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