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The Problem with Forced Arbitration

Last week we touched on the fact that arbitration agreements were making their way into many more settings than in the past. That includes different health care agreements between patients and providers. The trend is alarming, and it is important for Illinois community members to be on the look out for arbitration agreements. More residents need to understand the ramifications of being forced into arbitration when they are harmed by caregiving errors.

So what is so bad about arbitration? In short, the entire process is slanted to give big-defendants (like hospitals and medical clinics) advantages that they would not have in the traditional civil justice system. A few of the most important include;

Juries
The most critical problem with arbitration is that it deprives residents of their right to a jury trial. Americans have long treasured the importance of a group of neutral citizen decision makers reaching a resolution to end a dispute. After all, it is written into the Constitution. Large defendants do not like juries, however. That is because, unlike everywhere else, having more money or power is not an advantage with a jury. Everyone is on equal footing, and it is far more likely that the truth will bear out. That is exactly why arbitration gets rid of the jury and replaces it with a smaller group (usually one to three) of paid professionals. Companies are far more likely to have favorable outcomes with decided by arbiters instead of real community members.

Discovery
In civil cases for medical malpractice, it is critical for the patient and their family to have robust time to collect evidence to prove their case. The hospital itself usually has the information on its own, in the form of medical records and the recollection of those involved in the care. For that reason, it is important for a discovery process to be in place that allows for full and fair sharing of information. As you might guess, arbitration usually creates strict limits on this process, making it harder to prove misconduct.

Expense
Arbitration is often claimed to be helpful because it lowers costs. In reality, arbitration often imposes a significant financial liability on plaintiffs, making it harder for all to have access to accountability and redress. In fact, some systems requires a “filing fee” in the amount of thousands of dollars. This is a huge barrier for those of lower means, throwing out the notion that justice should not be available only to the wealthy.

Secrecy
The civil justice system operates for the public and its proceedings are available to anyone. This serves as a critical safeguarding tool, incentivizing big entities to push for changes to avoid the public learning about their misdeeds. With arbitration, the public never learns of the misconduct, increasing the likelihood that it will happen again and again.

The bottom line: Be careful when signing stacks of documents to ensure you are not giving away critical rights that may be important in the event of an adverse outcome. No matter what, if you suspect you or a loved one were harmed as a result of medical malpractice, be sure to seek out legal help to learn about your specific rights.

See Other Blog Posts:

Settlement in Nursing Home Kickback Case

Supreme Court Mandates Arbitration in Nursing Home Death Case