Medical Malpractice & Arbitration Agreements
Q. My doctor’s office wants me to sign an arbitration agreement. What is it?
A. Arbitration is a form of “Alternative Dispute Resolution,” in that it is seen as an alternative to traditional litigation. An arbitration agreement is a contract in which you agree to bring any legal claims you may have against your health care provider to arbitration, rather than filing a medical malpractice lawsuit in court. Unlike civil court, where matters are decided by judges and juries, an arbitration takes place before either an arbitration panel or sometimes a single arbitrator.
If the agreement calls for an arbitration panel, usually what happens is you hire one arbitrator, the health care provider hires one arbitrator, and then the two arbitrators try and agree on a third, “neutral” arbitrator. The panel will then hear both sides present their case and issue a binding ruling that, in most instances, cannot be appealed.
If the agreement calls for a single arbitrator, the parties try to agree on one, and if they cannot, they can ask a judge to appoint one from a panel of state-approved arbitrators.
Doesn’t sound too bad, does it?
Actually, that’s because most people don’t know what goes on behind the scenes. Finding arbitrators who are qualified to hear complicated medical malpractice cases is difficult; there aren’t very many. And they are expensive. You have to pay the arbitrator an hourly rate to hear your case, as well as any disputes that arise before the final hearing.
Additionally, there’s the problem of what is known as the “repeat player” bias. Chances are, you’ll be involved in one malpractice arbitration in your life. Malpractice insurance companies and the law firms they hire are in arbitration much more frequently; in other words, they are “repeat players.” Arbitrators are in business, and they may have an incentive to side with the insurance companies to ensure that they will be used again and again. There’s no such incentive for an injured patient who will probably only need to hire an arbitrator once. This results in a tendency for the arbitrators to want to please the party that is likely to give them repeat business if they are happy with the outcome. It’s more likely that insurance defense companies will be the returning customer, so some arbitrators are more inclined to side with them instead of the patient.
When you are able to take your case to court, the jurors are going to be like you; it will be the only lawsuit they are involved in, and they won’t be subject to making a decision based on the “repeat player” bias.
Q. How will an arbitration agreement affect my rights if something goes wrong?
The best quote I’ve read about arbitration came from former Harvard Law Professor Elizabeth Warren:
“Arbitration may seem like the Andy of Mayberry form of dispute resolution–folksy, cheap and fair. The data suggest, however, that it is Darth Vader’s Death Star–the Empire always wins.”
In medical malpractice cases, the “Empire” is the malpractice insurance industry. This is why they give discounts on premiums to doctors who force their patients to sign arbitration agreements. In arbitration, the parties often don’t have access to as much information from the other side as they would in a lawsuit, and the arbitrator’s decision can rarely be appealed. For these reasons, arbitration is generally seen as more favorable to health care providers.
Q. Can my doctor refuse to treat me if I don’t sign an arbitration agreement?
A. Not anymore. It used to be the law that health care providers could turn patients away if they were unwilling to waive their constitutional right to seek judicial redress for medical negligence.
In 2003, however, the legislature passed Senate Bill 138. “Shockingly, S.B. 138 gave health care providers the right to deny health care to anyone who refused to sign an agreement to submit all future medical malpractice claims to mandatory binding arbitration.” Health care administrators seized the opportunity, and began directing providers to have patients sign these new arbitration contracts or be turned away.
Needless to say, the inherent coerciveness of the practice resulted in public opposition. “Thousands of consumers were surprised and even outraged when they learned the details of the agreement.” “On the first day of the 2004 Utah General Legislative Session, lawmakers were greeted in the capitol with a rally of more than 30 protesters urging the repeal of S.B. 138.”
Responding to public outrage over the compulsory arbitration scheme, the 2004 Legislature repealed the 2003 version of the statute, and amended it to enact several prerequisites to enforceability of arbitration contracts. As the Utah Court of Appeals has noted, “[t]he primary impetus for the 2004 Amendments was a response to public outcry requesting that the status of medical arbitration be changed from mandatory to voluntary.” The 2004 amendments, which required that “the patient . . . be given, in writing,” notice of “the right of the patient to decline to enter into the agreement and still receive health care;” “the right of the patient to have questions about the arbitration agreement answered;” etc., indicated “the Legislature agreed that mandatory medical arbitration was too high a price to pay,” and that patient rights needed to be protected.
Q. I’ve already signed an arbitration agreement; what are my options?
A. An experienced medical malpractice attorney can investigate the circumstances under which the agreement was signed. There are a number of ways to attack the validity of an arbitration agreement in court, but the law is complex and the issues can be complicated. Insurance defense lawyers will vigorously fight to enforce agreements, and you need a lawyer who can go head to head with them to fight for your right to a fair jury trial.
If you’ve signed an arbitration agreement, but have not yet suffered an injury due to medical negligence, some contain provisions that will enable you to revoke them. Again, an experienced attorney can go through the agreement with you and help you protect your rights.
If you’ve signed an arbitration agreement in the last ten days, the law allows you to rescind it, although this must be done in writing.
If you signed an agreement and it is held to be valid, then it is even more important to retain a medical malpractice lawyer who can represent you through the arbitration process. Insurance defense lawyers fight just as hard in arbitration proceedings as they do in court, and they have many more procedural advantages. You need a lawyer who understands the process and can see your case through arbitration proceedings.
Brian P. Rosander, Comment, Medical Arbitration in Utah: A Plea for Greater Fairness and Equal Bargaining Positions, 2005 Utah L. Rev. 969, 974-75.
 See Bryson B. Morgan, Mandatory Medical Arbitration: The Wrong Answer to the Rising Cost of Health Care in Utah, 6 Hinckley Journal of Politics 43, 46 (2005).
 Id. at 47.
 See generally S.B. 117, Gen. Sess. (Utah 2004); S.B. 245, Gen. Sess. (Utah 2004); see also Utah Code Ann. § 78-14-17 (2004).
 Soriano v. Graul, 2008 UT App 188, ¶ 3, 186 P.3d 960 (citing Recording of Utah House Floor Debates, 56th Leg., Gen. Sess. (Mar. 1, 2004) (comments on S.B. 245, available at http://www.le.utah.gov/asp/audio/index.asp?House=H)).
 Utah Code Ann. § 78-14-17 (2004) (the current version has been renumbered as § 78B-3-421).
 Morgan, supra note 2, at 48.