How Not to Lose Your Right to a Jury Trial at Your Doctor’s Office
Oct 17, 2018 Articles and Resources
We have all experienced a routine trip to the doctor’s office that began with a monstrous pile of paperwork, held together by a clipboard and pen: HIPAA forms, medical history, contact information and more. Frantically, we scramble to complete all of the forms we were given before our name is called. And we may be signing over more than we ever anticipated.
Medical practices are increasingly slipping arbitration agreements into their patient intake paperwork. These agreements may be binding, and waive an individual’s right to a jury trial for any disputes between the patient and medical provider. Instead of a jury trial, the patient is forced to pursue civil action via arbitration – an alternative form of conflict resolution that seals all proceedings from public record, and is often accompanied by a confidentiality agreement to prohibit any discussion of the outcomes.
No one should be forced into arbitration without proper consent, and no patient expects to enter into this sort of agreement at a physician’s office. Forced arbitration can be particularly detrimental in cases of medical malpractice, where the damages can be personal and devastating. Fortunately, recourse may be available if the arbitration agreement can be invalidated by a medical malpractice attorney.
Understanding the Arbitration Process
Alternative Dispute Resolution, or ADR, does not take place in a civil court of law. Arbitration is one type of ADR where a neutral third-party is selected to serve as an arbitrator, who is typically a judge or lawyer by occupation. A dispute can be moderated by a single arbitrator or by a group of three arbitrators, rather than a judge or jury (as would be appointed in a civil court proceeding).
Once the arbitrator(s) have been selected, cases are presented for the arbitrators to make their decision. Their verdict is binding, which means it cannot be appealed in the future. Other notable differences between arbitration and traditional litigation are:
- Arbitrators are paid by one or both parties.
Typically, an arbitrator’s compensation is set by a per diem, which can be hourly, daily or per hearing. Fees are paid to the American Arbitration Association (AAA), who sends compensation to the arbitrator. It is common for healthcare providers to specify in their arbitration agreement who will be responsible for paying the arbitration fees. Too often, a patient who signs the agreement unknowingly agrees to bear the financial burden of resolving their dispute, which can be upwards of thousands of dollars.
- Arbitration is generally a faster and more streamlined process.
There are several reasons why arbitration is less time-intensive than litigation. Once an arbitrator has been selected, a dispute can be heard immediately – whereas civil court proceedings have to be scheduled, and can take months or years to be heard. Arbitration can also have a limited evidence process, with no interrogatories, depositions or formal discovery process.
- Filings and proceedings in arbitration are confidential.
Most civil court proceedings are open to the public, which can mean anything from camera coverage of a trial to publishing case and docket information online. The general public also has access to most courtrooms to view a trial or hearing if a seat is available. In arbitration, both the hearings and results are private.
- Arbitration can be mandatory.
The right to a trial by jury appears in the United States Bill of Rights, recognized as one of an individual’s most essential freedoms. Mandatory arbitration agreements obligate the signer to waive their constitutional right to a jury trial in order to resolve any disputes through arbitration. Many businesses require their employees to sign an arbitration agreement as a condition of employment.
Arbitration is neither inherently “good” nor “bad” – this and other forms of ADR can be an ideal outlet for resolving legal matters that may be excessively time-consuming or costly, when tried in a civil court. The real issue is whether or not an individual was given the choice to arbitrate a dispute, or if they agreed to arbitrate under false or misleading conditions.
Arbitration in Healthcare and Medicine
Because arbitration proceedings are confidential, large organizations such as hospitals and long-term care facilities favor the process over traditional litigation in order to protect their reputation. Arbitration agreements are not always easy to identify, and can be given to patients and assisted living residents in a variety of scenarios:
- For patients, non-mandatory arbitration agreements may be presented alongside other mandatory paperwork, such as the aforementioned new patient intake paperwork. Many of these forms provide essential information that a doctor must have before providing care, such as contact and insurance information, and personal health history.These agreements may appear as their own form to be signed, or as a statement or clause to be initialed within a broader “terms and conditions” type of document. It is also common for someone who is undergoing surgery to be presented with an arbitration agreement for their surgeon.
- For nursing home residents, arbitration clauses are commonly included in a facility’s admissions contract – a document that may be well in excess of 50 pages. These contracts are mandatory and presented at the time of a resident’s check-in to assisted living. TIME magazine estimates that roughly half of the 2.5 million Americans in long-term care are bound by some type of arbitration agreement.
It can be extremely difficult to identify an arbitration agreement or clause, particularly if it is buried in long-form paperwork for surgical, new patient or nursing home intake forms. A sample phrase or phrases to look for could be along the lines of:
All claims arising out of or in connection with the present contract shall be decided by a neutral arbitrator.
These statements are subtle, and typically will not be so explicit as to refer to one’s surrendering of their right to a jury trial in a civil court of law. The surest method for identifying an arbitration clause is simply to look for the words “arbitration” or “arbitrator.”
Invalidating an Arbitration Agreement
Even when they are mandatory, arbitration agreements are not illegal. However, the agreement can be invalidated if it is deemed unconscionable – a legal term meaning “extremely unjust or unreasonable.” The following are features that can indicate an arbitration agreement is procedurally and/or substantively unconscionable:
A contract of duress is made against an individual’s will or better judgment. For example, a person may be referred to a kidney specialist if their primary care physician noticed concerning levels of potassium in their bloodwork after a recent episode of fainting.The individual in question, feeling unwell and also very scared about the health of their kidneys, is then presented with a pile of new patient intake forms at the kidney specialist’s office – which they anxiously rush through while they wait to be taken back for additional screenings. In their rush to be examined and gain clarity about their health condition, the person unknowingly signs a voluntary arbitration agreement.
Contracts of adhesion are generally known as “take it or leave it” agreements. In other words, an individual is presented with a contract drafted by a party with superior bargaining power, and is compelled to agree to the contract exactly as it is written.It is common for patients to receive an arbitration agreement with their intake paperwork in the time period leading up to a scheduled surgery. When surgery is required to address potentially severe pains or health concerns, a person is unlikely to feel like they have any choice but to accept the contract in order to move forward with the operation they need to have.
- Fraudulent misrepresentation
When an individual signs an arbitration agreement without knowing they were signing a contract to waive their right to a jury trial, they may be able to prove the contract was executed by means of fraudulent misrepresentation.An individual might be given an arbitration agreement upon check-in at their doctor’s office, and told that it is “voluntary participation in a program that the provider will pay for.” They might even be told to call a phone number if they have questions about the program. Because the person is not a lawyer or healthcare professional, they do not know what “arbitrator” or “arbitration” means. The form also does not mention any rights that will be waived. Without knowing any better, the individual opts to sign the form without calling the phone number in order to save time at check-in.
These example scenarios are provided to help illustrate the complicated legal precedent of invalidating arbitration agreements in cases of medical malpractice. Every case is different, and you should consult with an experienced medical malpractice attorney to see if you have a claim.
How to Avoid Signing Your Rights Away at the Doctor’s Office
There are several practical steps you can take to better protect yourself and your family from unknowingly signing away your right to a jury trial at a routine doctor’s appointment. Awareness is the first step. Take action with these five practical suggestions that you can implement immediately:
- Go to your doctor’s appointments at least 15 minutes early.
This will ensure you have enough time to complete paperwork without feeling frantic or rushed. Arriving early is not just a good rule of thumb for new doctor’s appointments, because many providers require paperwork to be completed on a regular or annual basis after your initial intake.
- Ask for mandatory paperwork only.
At check-in, make the specific request that you would like to be provided with mandatory paperwork only. This is not a substitute for carefully reading through all of the documents you are provided. However, it may provide you with an additional checkpoint in identifying any hidden arbitration agreements.
- Teach your children the importance of their signature.
Children 18 years of age or older are able to execute medical agreements without the consent of a parent or guardian. Sit down with your child to have a conversation about the importance of reading and understanding any document requesting their signature. Better yet, make a point to lead by example at any medical appointments you attend together.
- Read all paperwork carefully, and highlight any areas you need help with.
This point cannot be stressed enough: Read any document requesting or requiring your signature (or initials) carefully and thoroughly. If you do not understand any of the components of a form that a healthcare provider has given to you, circle or highlight the areas you do not understand and ask for help before proceeding.
- Ask a spouse or friend to accompany you if you are seriously ill.
When you are sick and in distress, it is much more difficult to complete basic tasks. Reading and understanding a health contract may be more than your body can handle when you are battling illness. Consider asking a spouse or friend to accompany you to the doctor, to help read and explain any paperwork to you before you sign and receive treatment.
Fighting an Arbitration Agreement in Cases of Medical Malpractice
The personal injury attorneys at Padberg Appelbaum Knepper (PC&A) have represented multiple claims of medical malpractice to a positive resolution, including cases where an arbitration agreement was signed and invalidated.
In one recent case, a woman signed an arbitration agreement she believed to be mandatory after being referred to a specialist during her pregnancy. When complications at childbirth resulted in a total hysterectomy and claims of medical malpractice, the healthcare provider attempted to compel arbitration. PC&A attorneys were able to prove the arbitration agreement was invalid, and that the dispute could be tried in a civil court of law.
If you or a loved one suffered from medical malpractice or forced arbitration, the law office of Padberg Appelbaum Knepper may be able to help. Contact us today for a free consultation with one of our experienced St. Louis medical malpractice attorneys.