Arbitration in Medical Malpractice Cases

There is a certain degree of trust which must be placed into a medical professional each time a patient undergoes a procedure or receives treatment. Thankfully, errors involving medical professionals are far and few between in this country, but when they do happen, the consequences can be devastating. Retaining the services of an experienced medical malpractice attorney can be crucial to obtaining reimbursement for costs associated with the recovery from the error. One issue that many parties, both injured patients and medical professionals, must deal with is the cost of a medical malpractice lawsuit. In an effort to reduce this potential overhead, many medical professionals include arbitration clauses in the agreements that patients must sign prior to receiving medical care (in some cases, before even becoming a patient). A Cocoa Beach man was recently awarded $3.6 million as a result of medical error against a medical professional, the hospital, and a health services company when his wife received improper treatment that resulted in her death. Initially, the widower received the money through an arbitration, which was then affirmed by the court. A discussion of arbitration in medical malpractice cases, and when, strategically, it makes sense to take advantage of it, will follow below.

Arbitration

Arbitration, which can either be court-ordered or consented to by the parties as part of a pre-suit procedure, is a method of resolving a dispute informally and outside of a courtroom. The matter is heard and decided by an arbitrator, and not a judge or jury, and the rules are more relaxed and less formal. However, in addition to being unable to have a case heard by a jury of the patient’s peers, the arbitrator, who is neither a sitting judge nor elected/appointed, and who may have ties to the specific industry, an arbitration typically also means a reduced opportunity to provide the evidence that would otherwise be admissible in a court proceeding.

In most cases, arbitration decisions are final. There is a limited ability for an injured patient who does not obtain a favorable decision at arbitration to have a court overturn the decision, but the rules of the arbitration (which may have been set forth in the agreement between the patient and the medical professional) may severely restrict his/her ability. In some cases, even the right to take an arbitrator’s decision to an appellate court may be limited or waived by the patient/physician agreement. Note, however, that medical providers cannot mandate an arbitration procedure that is designed to be unfavorable to the patient, and these agreements will not be enforced.

Strategies

While it may seem that arbitration may not ever be advantageous for the patient, there are some instances in which it can be, beyond the potential monetary savings. Specifically, pre-suit voluntary binding arbitration can offer key advantages for patients, as it will serve to streamline the litigation process to move towards a quicker resolution while limiting litigation costs associated with a traditional, drawn-out medical malpractice lawsuit.

Most importantly, accepting a pre-suit voluntary binding arbitration by the medical professional serves to admit liability. In which case, the matter proceeds on Plaintiff’s damages only. Furthermore, once the arbitration panel issues an award, the medical professional’s rights to appeal are most likely limited. The medical professional must also pay the amount due within 20 days, or else face an accrual of interest until the amount is paid in full. Finally, if the patient prevails, the medical professional will most likely be required to pay the fees of the arbitrators, any arbitration costs, and reasonable attorney’s fees, as well as any interest on accrued damages awarded by the arbitrator.

Discussing these options with an experienced medical malpractice attorney can help ascertain which option would be most advantageous in a particular situation.

Seek Legal Advice

If you have been injured as a result of an error on the part of a medical professional, contact the attorneys at Pita Weber Del Prado as soon as possible. They have years of experience in medical malpractice matters, including potential alternatives to litigation. After a full analysis of the situation, if we believe that your injury was caused by an error by your medical professional, we will develop a strategy for pursuing a legal action in an effort to get you the most money for your injury. Contact our Miami office today for an initial consultation.

Resource:

floridatoday.com/story/news/2019/01/28/cocoa-beach-man-wins-3-6-million-judgment-health-first-wifes-2013-death/2675946002/

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