Medical Malpractice and Arbitration Agreements

Some physicians ask patients to sign arbitration agreements before treatment. These agreements are contracts that require patients to participate in arbitration rather than bringing a medical malpractice lawsuit in court. Arbitration is a form of alternative dispute resolution and seen and an alternative to litigation. Instead of matters being decided by judges and juries in a civil court, arbitration takes place outside of court and before a single arbitrator or an arbitration panel. If the arbitration agreement calls for a single arbitrator, the parties either agree to one or request a judge to appoint one. When the arbitration agreements requests an arbitrational panel, both parties hire their own arbitrator, and these arbitrators then choose a neutral third arbitrator. The arbitration panel listens to both sides and issues a binding ruling. For the most part, this final ruling cannot be appealed.

What Happens Behind the Scenes

While arbitration agreements sound good upfront, there's a lot that goes on behind the scenes that most people aren't aware of. First of all, it's difficult to find qualified arbitrators who have the medical knowledge to understand complex malpractices cases. Plus, the hearings are expensive. Arbitrators are paid by the hour.

Secondly, arbitrators are repeat players with malpractice insurance companies and tend to have an incentive to side with the insurance companies in order to be used again. Arbitrators want to please the insurance companies for repeat business. In the legal arena, it's known as "repeat player bias." When you take your case to court with an attorney medical malpractice lawyer, jurors don't make decisions based on this bias. Doctors who have their patients sign arbitration agreements are given discounts on premiums. These are all the reasons why health care providers, physicians and arbitrators view arbitration favorably. At the same time, it's important to know that health care providers cannot turn patients away if they are unwilling to sign arbitration agreements. Prior to 2004, it was legal to enforce arbitration contacts, but new legislation changed that due to the public outrage of compulsory arbitration contracts.

Options When You've Signed an Arbitration Agreement

There are a number of ways to challenge the validity of an arbitration agreement if you've already signed one, but you'll need an experienced attorney medical malpractice lawyer. Not only are the laws and issues complex, insurance company defense attorneys will fight hard to enforce signed arbitration agreements. An experienced attorney medical malpractice lawyer can go head to head with them and fight for your right to a fair jury trial.

If you've already signed an arbitration agreement but have not incurred an injury because of medical negligence, there may be some provisions in the agreement that will allows you to revoke them. If you've signed an arbitration agreement, it can be rescinded within 10 days. However, this must be done in writing.

When the arbitration agreement cannot be voided or rescinded, it is highly critical to hire an experienced medical malpractice attorney who can represent your rights during the arbitration process. Keep in mind that insurance defense attorneys battle just as hard in arbitration proceedings as they do in courtroom litigation. For the best outcome, you need a medical malpractice attorney who has a deep understanding of the arbitration process and can successfully take your case through all of its proceedings.

A good quote about arbitration comes from former Harvard Law Professor Elizabeth Warren. She stated, "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." With this quote in mind, it's even more of a reason to retain a medical malpractice attorney for arbitration.

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