January 29, 2013

Medical Malpractice Arbitration Decision Vacated for Disclosure Problems

by Levin & Perconti

Our injury attorneys frequently remind Chicago residents of the dangers of arbitration agreements. Usually entered into unknowingly, these agreements often bind parties to using a separate legal process to resolve disputes. Sadly they are growing in popularity in many contexts, including nursing home admissions and some speciality medical services. At the end of the day, arbitration is almost always more harmful to plaintiffs than the traditional civil justice system. Where at all possible, it is critical for individuals not to sign these agreements to preserve their right share their story in front of a judge or jury pursuant to regular legal rules in the event of a dispute.

Unethical Relationship With Arbiter
One recent case offers an example of how a family’s attempt to seek accountability following medical malpractice hit a road block as a result of a binding arbitration agreement and questionable relationships between the defense counsel and those involved in the arbitration decision.

According to a report from the Metropolitan News Enterprise, a family filed suit with claims of malpractice against a doctor who worked at a back speciality medical group, a surgical center, and a third medical group involved in the matter. The husband and wife in the case sought accountability for the wife’s a botched spinal disc surgery that caused the family significant financial loss, pain, and suffering.

Unfortunately, a binding arbitration agreement was signed by the parties before having the surgery. As a result, they were forced to resolve the dispute via a three member arbitration panel. The three member panel included one individual chosen by each party and a third chosen by the other two arbiters.

As required by law the neutral arbiter submitted disclosure information. The disclosures were to ensure that this neutral party did not have any relationship with anyone involved in the case which might influence his decision or remove even the appearance of impartiality.

Eventually, the panel reached a decision for the defendants, denying the couple’s malpractice claims. In practical terms, because each side picks one arbiter, it is always the so-called neutral arbiter whose decision settles the matter.

Appeal
After the decision was handed down the couple appealed via the regular judicial system claiming that certain disclosures were not made in the arbitration process. Specifically, the lead attorney for the defense in the case had--midway through the process--joined an arbitration company to provide arbitration services. This put him in a potentially unfair relationship with those making the decision. Further, the attorney’s job switch was not disclosed.

Initially, the trial court judge denied the appeal. However, a higher court reviewed the matter and reversed. The arbitration decision was vacated, according to the court, because based upon the state’s Arbitration Act all parties are required to “disclose all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.”

It is fortunate in this case that the couple will get a second chance to share their story in front of a, hopefully, neutral panel. However, the hoops that had to be jumped through in just to get that second chance are a reminder of the need to avoid binding arbitration agreements at all costs.

See Other Blog Posts:

Exposing Unfair Insurance Company Practices

Check on Your Doctor’s Malpractice History