View All 5. Sitemap Privacy Policy Login. More Contact Info. Menu Menu Location Contact. What Is An Arbitration Agreement? Contact Us If you believe that you have been a victim of medical malpractice, the attorneys at Younker Hyde Macfarlane, PLLC, can help you consider your legal options regarding compensation for damages. Popular Tags. All Posts by Month. Free Consultation Today. Phone Number. The team helped me with all aspects of my case, including medical and financial, and understood that it affected more than me but also my family.
Do I Have a Case? Video Contact Us Blog. The process commonly involves three arbitrators: one selected by each side and a neutral arbitrator--frequently a retired judge--agreed to by both parties. The decision cannot be appealed by either side. There is no cap, however, on other types of damages, which include lost income and the cost of future medical care. The study also asked doctors to list the reasons why they used arbitration agreements.
The California Medical Assn. Its literature notes that lack of voluntary consent has been used to invalidate some agreements. Medical Underwriters of California, a malpractice insurer that covers 3, California doctors, is lukewarm about arbitration agreements, said Vice President Ron Neupauer.
Because the malpractice insurance company is doctor-owned, he said, there are concerns about making arbitration the kickoff for a doctor-patient relationship. Once a patient signs on the line, he or she has only 30 days for a change of heart. Most states have enacted laws to govern arbitration in the health care arena, setting forth specific requirements for arbitration agreements. The Federal Arbitration Act FAA was passed to limit states from placing onerous requirements on arbitration agreements.
Casarotto , the U. Supreme Court held that the FAA preempted a Montana statute that declared an arbitration clause unenforceable unless the clause was printed in a certain format. The Supreme Court has said that the FAA applies to all disputes involving interstate commerce, and that the FAA should be read broadly to require arbitration where the contract contains an arbitration clause.
The judicial view is that activities in the health care industry constitute interstate commerce because shipping medical supplies, performance of laboratory tests, recruitment of physicians, receipt of Medicare funds, treatment of out-of-state patients, and out-of-state offices cross state lines. Despite judicial favor of arbitration agreements, there are circumstances when such agreements will be unenforceable.
For example, courts will not compel arbitration if the plaintiff was not a party to the arbitration agreement. This situation can arise where the decedent in a wrongful death lawsuit signed an arbitration agreement, but a next-of-kin survivor files the suit. In Lawrence v. In refusing to compel arbitration, the Missouri Supreme Court held that the arbitration agreement only applied to claims brought by the patient. Common law defenses such as duress, unconscionability, or fraudulent misrepresentation can invalidate contractual agreements; of these, unconscionability is commonly invoked in patient-physician arbitration agreements.
An example of an unconscionable agreement would be one that restricted the patient to arbitration only, while the physician retained the option to sue.
A court will scrutinize both the mechanism whereby the arbitration agreement was formed and the terms of the contract itself. If a contract was entered under highly coercive circumstances, or if the terms are obviously one-sided, the arbitration agreement may be invalidated. In others, arbitration must be available without cost to indigent patients.
The fee schedules of most major providers of arbitration services, including the National Arbitration Forum NAF , reflect the guidelines set forth by the courts. Arbitration providers must be impartial.
In Engalla v. Permanente Medical Group, Inc. A court may invalidate an arbitration agreement if it constitutes a contract of adhesion.
An adhesion contract is a form contract created and imposed by a stronger party on a weaker party, on a take it or leave it basis, where the terms of the contract are in favor of the drafting party. A contract of adhesion is not automatically unenforceable, but a court will scrutinize it closely, and may decide not to enforce specific terms of the contract that are unenforceable.
An example of an adhesion contract is conditioning treatment upon the patient signing the arbitration agreement. Colorado mandates that any physician who refuses to treat a patient solely on a refusal to sign an arbitration agreement will be subject to disciplinary action. A properly drafted arbitration agreement should be clear that refusal to sign is not a condition of treatment, and that the patient will still be treated, or alternatives offered, even if the arbitration agreement is not signed.
In Broemmer v.
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