Arbitration is an alternative means of dispute resolution that can keep a medical malpractice claim out of court. The common description of “rent-a-judge” is fairly accurate. Legal scholars have hailed arbitration as a way of rendering dispute resolution quick and cost-effective.
Its critics, however, caution that arbitration is not suitable when there is a large power differential between the parties. This is often the case in medical malpractice arbitration.
How Arbitration Works
Both sides (you and your health care provider) must agree in writing to arbitrate either any dispute that may arise between you (if you agree to arbitrate before a dispute arises) or a particular dispute (if you agree to arbitrate after a dispute arises).
The parties select one or more arbitrators, and the rules of procedure and evidence normally observed in a courtroom setting are relaxed.
Medical malpractice arbitration tribunals typically consist of three arbitrators: one appointed by each party and a neutral arbitrator—frequently a retired judge—on whom both parties agree. Arbitration awards are typically final.
You cannot appeal an arbitration award to a court or to another arbitration tribunal except for very limited grounds, such as corruption or the arbitration agreement being invalid.
Problems With Medical Malpractice Arbitration
For a number of reasons, medical arbitration can make it difficult to reach a fair decision.
You should consider some factors before signing an arbitration agreement with a doctor or other health care provider:
- Conflict of interest—Lawyers who represent doctors often enjoy cozy relationships with professional arbitrators, raising the specter of bias. Although corruption is grounds for challenging an arbitration award in court, it can be hard to prove.
- “Splitting the baby”—Some arbitrators are more concerned with politics than justice. These arbitrators are likely to split an award down the middle, no matter how one-sided the evidence may be, so that neither side will be too unhappy.
- No appeal—It is difficult and often impossible to appeal an arbitration decision, no matter how bad it might be.
- Expense—Arbitration is not always cheaper than courtroom litigation. In complex disputes (which often occur with medical malpractice claims) without a lot of money at stake, arbitration is often more expensive
- No jury—You give up the right to a jury trial. Juries have a reputation for being more plaintiff-friendly in medical malpractice lawsuits. This applies not only to who wins or loses, but to how much a winning party receives. A bad arbitrator can do a lot more damage when they play the role of both judge and jury.
- Limited discovery procedures—Discovery is the process of demanding evidence that is in the possession of the opposing party or a third party. While limiting discovery saves time and money, it also forces you to proceed with less evidence. Sometimes healthcare providers hold critical evidence that patients need to know about to have a fair chance of winning.
- Relaxed rules of evidence—An arbitrator can typically consider evidence that would be excluded in court. This consideration could work for or against you, depending on the nature of the evidence.
- Limited cross-examination—In arbitration, the right to cross-examine witnesses is typically limited. In fact, witnesses may appear only through written statements, which essentially prevents cross-examination. If you are faced with a lying witness, cross-examination is one way of exposing them.
- Compelled arbitration—If you agree to arbitrate before a dispute arises, you could be sorry after the dispute arises. Nevertheless, the defendant will probably be able to force you to arbitrate. It is normally best to retain your flexibility by not agreeing to arbitrate until a dispute actually arises.
The foregoing is only a partial list of concerns about medical malpractice arbitration.
To put the matter into perspective, regardless of whether your dispute goes to court or arbitration, you will still have the opportunity to settle your claim, even in the midst of proceedings, unless the defendant is too stubborn to settle.
Take Action Immediately
If you believe that your health care provider has harmed you through medical malpractice, you almost certainly need the services of a skilled medical malpractice attorney, especially if you have agreed to arbitration,
At Wells Call Injury Lawyers, medical malpractice law is what we do.
Our attorneys have been winning cases for our clients for years on end—in court, at the settlement table, and in arbitration tribunals.