Arbitration in the Medical Malpractice Context

Brooks Schuelke

Contributor

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This weekend, the Philadelphia Inquirer wrote about a disturbing trend of mandatory arbitration agreements showing up in the medical malpractice context. The article states:

Within the space of two weeks late last year, Michael and Hedy Cohen, who happen to be experts on medical errors, each encountered what they saw as a disturbing development in the modern doctor-patient relationship.
They were asked by two groups of suburban doctors to sign away their right to a jury trial in the interest of reducing malpractice costs.
Legal experts say such attempts to channel potentially unhappy patients away from the court system and into arbitration are becoming increasingly common in health care

We are not against arbitration per se. Many disputes can be resolved in arbitration. But many problems arise with pre-dispute arbitration agreements. Without anyone counseling them on the subject, consumers agree to arbitrations with rules the consumers don't understand, agree to processes that may be much more expensive than they can imagine, and agree to use arbitrators that may not be appropriate for the future disputes. Given the few minutes that patients have to read agreements before appointments, there is simply no way for a patient to get any advice on whether the arbitration agreement adequately protects their rights.

Fortunately, this risk might be addressed by Congress. An arbitration fairness act is currently winding its way through the process, and its passage may bring relief to consumers. Until then, we urge you to watch your agreements closely and consider the risks you are taking by signing arbitration agreements.