February 12, 2012

Arbitration Agreements Popping Up in Some Medical Cases

by Levin & Perconti

A host of tricks exist to take away the right of negligence victims. Large companies and multi-billion dollar conglomerates, from hospitals and nursing homes to pharmaceutical companies, have spent hundreds of millions of dollars on experts to figure out ways to insulate themselves from paying for the consequences of their actions. The Illinois medical malpractice lawyers at our firm frequently discuss the legislative efforts on this front—usually wrapped up in the guise of “tort reform.”

However, legislation is not the only way that these entities seek to take away rights. They also try to ask patients and residents to sign away their rights voluntarily.

All readers have experienced this first-hand: it is the stack of papers that you are forced to sign whenever you do anything from being admitted to a hospital to buying a new cell phone. Often hidden in that stack are clauses which indicate steps that must be taken if the consumer has a dispute with the company with which that they are dealing. Most consumers have no idea what they are signing away and little option but to sign anyway. One of the most common clauses hidden in those stacks of papers are “forced arbitration clauses.” These essentially require all disputes to go through a process called “arbitration” instead of going through the regular court system with a judge and jury.

I’m sure it comes as a surprise to no one that these arbitration proceedings usually end up worse for victims. There is a reason that these large companies want to go to arbitration instead of the regular court system—it is in their own financial interest. When these arbitration requirements occur in the medical context, each Chicago medical malpractice attorney at our firm knows that there are real consequences for those involved.

A Huffington Post article this week touched on the ways that doctors are using these arbitration agreements to avoid facing the decisions of a judge or jury. They’d much rather face the decision of hand-picked arbiter. The story noted that the arbitration agreements are now showing up in all kinds of transactions where they otherwise were never before found, including things like cosmetic surgery operations.

In some cases it might be logical to use arbitration. When there is purely a commercial transaction involved—like with credit card companies or common-carriers. For example, instead of having to file a lawsuit when you have a dispute with FedEx about package delivery, it might be logical to use an alternative system. However, there is a big difference between signing a contract to send a package and signing a contract to receive life-saving medical care or absolutely essential long-term care. Those are not purely commercial situations. When medical malpractice occurs—often with incredibly serious consequences—it is not logical or fair to use some alternative systems. These are exactly the situations when victims should have their rights to a jury and judge preserved. Yet, our medical malpractice lawyers have been surprised to see these agreements popping up in a more cases involving medical professionals. All consumers should remain on the look-out for these situations and do whatever possible to avoid all mandatory arbitration agreements.

See Our Related Blog Posts:

Arbitration Agreements Continue to Unfairly Limit Rights of Nursing Home Neglect Victims

U.S. Senate Arbitration Fairness Act Would Provide Fairness for Nursing Home Abuse Victims