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Arbitration vs Malpractice

Would you rather go to court or settle a patient complaint with an arbitrator? Do you think Kaiser Permanente is the only entity able to arbitrate before deferring to the courts? Let’s talk about third-party arbitration versus malpractice as a way to resolve a potential lawsuit.

But Dr. Mo, you’re not a lawyer. I know, it’s okay. I do, however, watch a lot of YouTube. Fortunately, I’m not the first person to suggest the idea of arbitration (Federal Arbitration Act) to those who own their own private practice.

Actionable takeaways from this article, reference the FAA in your patient agreements and be sure to have a competent, experienced attorney draw up that agreement.

Designing a Properly Enforceable Arbitration Agreement

Each patient has to sign a consent form and they have to abide by my rules and regulations in as much as I have to abide by HIPAA.

In these documents, a properly executed arbitration agreement can be used to settle legal matters between patient and doctor.

The arrangement has to be legal, meaning you cannot write the agreement in such a way as to force the patient to do something that is against state or federal laws.

Based on my research, not all attorneys are comfortable or experienced with such contracts. I recommend starting with previous attorney recommendations I’ve shared and asking for referrals from there.

Arbitration vs. Malpractice

I prefer to go to arbitration instead of going to trial. Then again, I’m a physician. I’m not sure what I would want as a patient. Safe to say that our med-mal situation in the US healthcare seems hardly sustainable.

According to Andrew T. Suszek, J.D., arbitration is binding upon the arbitrator’s final decision. At least, this is the case in most states.

Also, whereas the road to a trial can be plagued with an endless stream of procedural and evidentiary motions, very few (if any) motions are appropriate prior to arbitration.

Nolo

There is guidance in this regard. States have laws that make designing arbitration agreements fair.

Many states have passed laws dictating how arbitration should work in medical malpractice situations. Usually, when arbitration clauses comply with those laws, courts will find them to be valid and enforceable.

Nolo

The Kaiser Argument

In my coaching sessions, I get asked about job opportunities frequently. It’s often a high-paid specialist choosing between staying in private practice with an income ceiling of $800k vs. moving over to KP for a guaranteed income of $500k.

A common pro vote for KP is that they have an arbitration clause that specialists believe protects them. And it does, in most cases. But the important point is that it’s not just KP; I have the same clause in my virtual Primary Care practice at Digital Nomad Health.

This provision has been successfully used in motions to rescind arbitration contracts with Kaiser because the required language was not included in the enrollment package, including at least one case where the enrollment was accomplished online and the language was not displayed in the required format on the website. (Brown v Kaiser, No. E069356, 2019 WL 2539179 (June 20, 2019) (unpublished opinion).)

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