Arbitration of Negligence Claims Is Required
By Your Kaiser
Service Agreement
Under the Kaiser Service
Agreement, any dispute about plan coverage or any claim of patient injury
caused by substandard medical care must be decided through a private
arbitration system developed by Kaiser. Under this system a Kaiser member
cannot use the conventional state courts to seek compensation for injury caused
by negligence. And as for establishing proof of negligence, private arbitration
and state courts are much the same.
In all but a very few instances, in order to present a plausible case, medical
experts must testify that the care provided was sub-standard. During the
arbitration proceeding, a claimant must introduce evidence by medical experts
that the care received was below the sub-standard care that caused the
patient’s injury. The requirement for expert testimony means
that it is very rare for a claimant without an attorney to effectively
represent himself or herself in a Kaiser arbitration proceeding.
It is the
opinion of this lawyer that private arbitration may be, for certain kinds of
medical negligence cases, a better forum than a state court for prosecuting a
medical malpractice claim. Although this opinion may be controversial
among lawyers, I am of the opinion that if the arbitrator is fair, a claimant
is more likely to prevail through arbitration on a simple medical negligence
claim than before a jury. Juries tend to be reluctant, except in
egregious cases, to find that doctors or nurses have been negligent, especially
if the defendant physician has a warm, kindly, ingratiating and authoritative
manner. An arbitrator who has been either a judge or experienced
attorney is more likely to discount personal and professional attributes of the
defendant and determine whether the doctor was negligent, based on the medical
evidence
On the other hand, it is the opinion of this lawyer that a claimant is likely
to receive less compensation for his or her injuries from an arbitrator than
from a jury.
Arbitration has
been touted as having other benefits over state court, including the contention
that it takes less time and is less costly. That is not my experience.
Arbitration of complex claims takes just as much time and work and expense as
in state court. Arbitration of complex claims may be more costly because
the parties pay the cost of the arbitrator's fees, which are generally $200 to $400
per hour.
One of the principal problems with private arbitration relates to how the
arbitrator is compensated. When one of the parties pays the
arbitrator, or provides repeat business to an arbitrator, private
arbitration may be subject to bias. Because millions of people belong to
Kaiser, many claims of substandard care are made against it each year. Given
these numbers arbitrators who hear and decide claims can expect to earn
significant income from repeat business if they arbitrate several Kaiser
claims per year. If Kaiser accepts a decision by a particular arbitrator
as fair, then Kaiser will look favorably upon that arbitrator, and will
agree to have that arbitrator hear additional arbitrations. If, however,
Kaiser does not like an arbitrator's decision in a particular case, it
has the power to prevent that arbitrator from being appointed again to hear
additional arbitrations involving Kaiser. In other words, in order
to get repeat business an arbitrator must look over his or her shoulder
to be sure that his or her decision does not offend Kaiser. State
court judges, who are paid by the state of
Because of the issue of repeat business, there is concern in the legal
community that arbitrators will decide closely contested claims in Kaiser's
favor, or give low awards to claimants who prove that they received substandard
care and were injured.
In 1998, the California Supreme Court issued a decision involving the Kaiser
arbitration system which was very critical of Kaiser. As a result, a
commission composed of noted jurists, attorneys and public members was appointed
to review and make changes to the Kaiser arbitration system. Those changes have
helped to make the Kaiser arbitration system more equitable. However, the
concerns raised by the issue of repeat business remain.
Lastly, it is this lawyer's opinion that arbitration provides Kaiser with a significant benefit relating to the suppression of medical mistakes. It has been this lawyer's experience that medical mistakes are generally concealed. This is done in a variety of ways, including omissions, alterations and fabrications of medical records (A problem that is not limited to Kaiser). If a medical malpractice case were being heard by a jury - as opposed to an arbitrator - the private citizens comprising the jury might very well assess punitive damages against the medical provider if they believed that the provider had falsified medical records to conceal negligent care. It is this attorney's belief that an arbitrator in a Kaiser arbitration would never punish Kaiser with punitive damages because that would be the last Kaiser arbitration which that arbitrator would ever hear. w
ould ever hear.
