Medical malpractice cases are extremely sensitive and, in situations where an individual has suffered severe injury, the outcome of a malpractice case is all the more important.
Like a business contract, the patient/doctor relationship is one in which a certain amount of trust, and money, is laid on the table in anticipation of a desired outcome. When that outcome is not achieved and, instead, results in injury, it's important that there be avenues of recourse open to the affected patient — or that patient's family.
Still, not all medical malpractice cases are tried in court. As an alternative to litigation, some doctors and patients may choose to settle a conflict by way of arbitration. Medical arbitration agreements are signed before the patient procedure and only go into effect if there is a disagreement regarding said procedure afterwards.
In the event of such an argument, both patient and physician are given the opportunity to present their arguments before a pre-designated arbitrator, who then hands down a decision. Medical arbitration agreements are different from, say, mediation agreements in the sense that they do not allow for further litigation after a decision.
Arbitration is an attractive option to many because it costs much less money and takes less time than a trial, which can drag on through appeals. Additionally, arbitration maintains participant privacy.
However, it does have disadvantages. For one, arbitrator decisions are final, pending any allegations of unfairness or misconduct. It can also be difficult to agree on a formal set of guidelines for arbitration, whereas court trials are more straightforward in plaintiff and defendant expectations.
Still, even if an arbitration agreement has been signed, the need to arbitrate may be deemed unenforceable by the court.
For example, arbitration agreements are only binding if the plaintiff was a party to the agreement. Say an elderly woman agrees to arbitration and then passes away as a result of medical malpractice. If her son brings suit, the arbitration agreement will not extend to him or hamper his ability to sue the physician for malpractice.
The court may also dismiss arbitration agreements if they were reached under duress, are unconscionable or contain fraudulent misrepresentation. For example, the court may dismiss an arbitration agreement in which the patient was coerced into signing. Arbitration must also be neutral and should not be administered by one of the parties involved.
Adhesion, a situation in which the stronger party imposes arbitration terms on the weaker party, can also be cause for dismissal by the court.
In the case of Broemmer v. Abortion Services of Phoenix, Ltd, an Arizona court dismissed an arbitration agreement because the teenage patient did not understand the conditions of the arbitration agreement she had signed. Additionally, the medical center in which she was treated did not have any policy in place to ensure patient awareness.
The best advice for patients considering an arbitration agreement prior to medical procedure is to ask questions and ensure clarity in regards to the agreement being signed. Absolutely no one should sign an arbitration agreement if they feel pressured or unsure of the step they are taking.