Filing a doctor`s complaint in court for the patient`s fee will not waive the right to force arbitration. In my previous article, I outlined the legal framework for resolving medical malpractice disputes. I wonder if arbitration is likely to become a forum of choice for physicians and patients. I think this scenario is unlikely. Despite the judicial favours of arbitration agreements, there are circumstances in which such agreements are not applicable. For example, the courts will not force arbitration if the plaintiff was not a part of the arbitration agreement. This can arise when the scammer has signed an arbitration agreement in the case of an illegal death claim, but a survivor from the nearest family takes legal action. In Lawrence v. Beverly Manor, a daughter of the care home, as a power of attorney, signed an arbitration agreement when her mother was admitted to the institution. When the patient died after a fall, the patient`s son filed a complaint. In refusing to force arbitration, the Missouri Supreme Court found that the arbitration agreement applies only to the patient`s rights.
Many doctors believe that lay juries cannot fully understand the complexity of medical misconduct cases, and may indicate a medical umpire in the agreement. States are divided on the validity of these arbitration clauses. Arizona and Louisiana prohibit arbitration agreements that require the patient to choose a physician as an arbitrator, while the Utah Supreme Court in Sosa upheld an arbitration decision that included a three-arbitrator jury of a certified orthopaedic surgeon on the board of directors. Despite criticism that patient-physician arbitration agreements can violate public order by limiting the sacred right to a jury, the legal system has favoured arbitration agreements. For example, the Tennessee Supreme Court in Buraczynski v. Eyring, decided that arbitration agreements between doctors and patients are not in themselves non-hard as opposed to public order. The Madden Foundation v. KaiserShospitals clarifies a common opinion between the courts. When a patient who had agreed to settle all cases of maladministration and the resulting claims against the hospital filed a lawsuit, the California Supreme Court dismissed the appeal and ordered arbitration. The Court found that the agreement was ambiguous insofar as it was plausible to limit itself to medical claims and therefore could not cover the rights of the TCPA. It`s easy to see how the court got there.
Article 1 deals only with medical errors. And although Article 2 contains a broader language, it refers specifically to the claims arising from the treatment. TCPA claims can certainly give you heartburn, but these are not medical malpractice claims. The doctor-patient relationship is by nature contractual; a doctor agrees to treat in exchange for a payment for services. A contractual strategy to deal with the risk of medical malpractice lawsuits is to sign arbitration agreements with patients. Here we look at the existing legislation that governs these agreements. A responsible physician can avoid reporting by using his or her own money to reimburse the complainant, but even in this unusual scenario, the doctor could be reported to the NPDB. The reason is simple: as with court decisions, a negative arbitration decision could trigger a negative professional examination, a negative decision by the medical office, or the revocation of the doctor`s hospital privileges. Under the HCQIA, each of these actions must be notified to the NPDB.
Unlike mediation, mediation is an informal process in which an impartial third party facilitates a negotiated voluntary settlement between the parties to the dispute. If mediation efforts fail, however, the parties may resort to a formal judicial decision; Unlike arbitration, mediation does not close the door to future litigation.