“Alternative Dispute Resolution” (ADR) is a hot-button topic in the legal world these days. ADR refers to a range of ways to deal with various disagreements as an alternative to the traditional civil justice system. Mediation, negotiation, and arbitration are common ways that parties seek to more efficiently settle their situation. When handled appropriately, ADR is a great tool that may be fair to both sides.
Unfortunately, our Illinois medical malpractice attorneys know that the good intentions of ADR are frequently abused by those seeking to take advantage of others and eliminate risk of being held fully responsible for their unreasonable conduct. For one thing, many consumers, medical patients, and nursing home residents are forced to sign binding agreements even before their treatment or service giving up their rights to pursue a traditional suit. In addition, those agreements usually include provisions/terms that are as favorable as possible to the larger company at the disadvantage of the consumer.
This sort of overreach is slowly seeping into medical malpractice cases. Therefore, instead of a voluntary choice by both parties to puruse ADR in cases where it is in both of their interests, one party is unknowingly forced to go through the process which often places them at a clear disadvantage.
It is important for legal advocates to make strong cases against the use of these provisions. Hopefully more courts will understand the public policy dangers they present and invalidate them.
For example, the Legal Examiner reported recently on a new case where a court refused to enforce an alternative dispute resolution agreement signed by a patient’s mother. According to the report, the patient sued a hospital alleging that the care she received there was substandard. She developed several bedsores that worsened while she was in a coma at the hospital.
While she was incapacitated, halfway through her hospital stay, the woman’s mother signed various paperwork. In the midst of that paperwork for things like Medicare rights was a document involving binding alternative dispute resolution in the event of unreasonable care allegations.
When the medical malpractice lawsuit was filed, the hospital sought to have it dismissed as a result of that agreement signed by the mother. However, the judge in the case refused to enforce the ADR agreement. In his opinion he noted that the mother did not have a power of attorney and was not her daughter’s agent at the time. As a result there was no way to hold the daughter responsible for an agreement signed by another without any other legal basis to sign the agreement on her behalf.
While this ruling is an good one in terms of basic fairness, it is important to note that these sorts of situations are still the exception when it comes to these binding pre-treatment agreements. Unfortunately, each Chicago medical malpractice lawyer at our firm knows that many patients themselves are given various documents to sign at these times and may sign the binding ADR agreement unknowingly. In those case, where agency issues are not at play, it is still important to challenge the enforceability of the agreement on public policy grounds. Also, at the end of the day, it is always best for these agreements never to be signed at all.
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