Virginia Lawyers Weekly

Despite recent national attention to the issue of patient arbitration agreements, Virginia so far has avoided legal controversy over the efforts by some medical providers to keep disputes over medical care out of the courts.

In 2004 and again in 2005, Virginia circuit judges rejected efforts by nursing homes to force medical malpractice claims into binding arbitration. Since then, however, the question of the enforceability of patient arbitration agreements has remained largely out of view in Virginia.

The waters may not remain calm for long. Recent reports indicate that some doctors – not just nursing home providers – are insisting that patients sign arbitration agreements before receiving treatment. By signing such agreements, the patients give up their right to a court trial in favor of having any malpractice claim resolved by the binding decision of an arbitrator or an arbitration panel.

The arbitration trend has become prominent in the business of nursing homes and other assisted living facilities. “I would venture to say that at least 75 percent of Virginia nursing home contracts have arbitration agreements in them today,” said Lauren Ellerman of Roanoke, whose practice includes nursing home abuse and neglect cases.

Ellerman’s colleague, Dan Frith, agreed that nursing homes are stepping up the use of arbitration clauses in their contracts. “It has spread like wildfire,” Frith said. He estimated that, five years ago, only 20 to 25 percent of nursing home contracts included arbitration clauses.

Medical defendants and their insurers favor arbitration of malpractice claims because of lower costs, less publicity, and verdicts that are not inflated by emotion. Plaintiff’s lawyers favor the opportunity for an emotional appeal to a jury, but they also complain that arbitration can limit discovery and eliminate the possibility of punitive damages.

The controversy is not over agreements between litigants to arbitrate existing claims. The objections arise over written contracts presented by providers to patients or family members who are told that they must agree to arbitration before any treatment is provided.

Frith explained that, in a typical nursing home scenario, a family is told that they have about 24 hours to find a home for an ailing relative. They have never researched nursing homes before. When they find a good choice, they are presented with a 10- to 12-page legal document to sign in order to admit the relative to the home. “Hell, they don’t know what they’ve signed,” said Frith.

This month, two U.S. senators introduced a bill to prohibit the use of arbitration agreements at the time of admission to a nursing home. “Forcing a family to choose between quality care and foregoing their rights within the judicial system is unfair and beyond the scope of the intent of arbitration laws,” said Republican Mel Martinez of Florida, one of the bill’s sponsors.

A nursing home industry group called the legislation “misguided.” According to a news release from the American Health Care Association, “the growing use of pre-dispute agreements throughout the healthcare sector helps bring about more timely, less adversarial settlements.”
Plaintiffs’ attorneys often find ways to avoid arbitration in nursing home cases. Frith claimed success in getting out of many arbitration agreements, as did Roy Turner, an attorney whose practice also focuses on nursing home cases.

“I’ve been able to beat them on numerous occasions,” said Turner.

In 2004, Roanoke County Circuit Judge James Swan-son refused to apply an arbitration clause in a nursing home contract because it was not shown that the resident’s son was acting on his mother’s behalf when he signed the contract as a “responsible party” (VLW 004-8-190). A year later, in a Danville case, Circuit Judge Joseph Milam Jr. reached the same conclusion in a contract with identical wording (VLW 005-8-154).

The Virginia Code, in section 8.01-581.12, expressly provides for binding arbitration agreements for medical malpractice claims, including agreements about claims which “may thereafter arise.” The statute does require a 60-day “kickout clause,” however. A patient’s representative can withdraw from the arbitration agreement within 60 days after the termination of health care or appointment of a personal representative.

“We have opted out of arbitration in some cases using that clause,” said Frith.
Turner noted, however, that a plaintiff’s attorney might not want to be too hasty. “Arbitration is not prima facie a bad thing.” Turner pointed out, for instance, that some arbitration agreements call for the nursing home to pay the costs of arbitration.

Doctors too?

While nursing homes have taken the lead on seeking patient agreement to arbitration, doctors and their business managers now are being urged to follow suit. Florida’s largest malpractice insurer reported that several hundred doctors in that state now require patients to accept binding arbitration as a condition for care, according to a published report.

At least one California medical malpractice insurance company requires its insured doctors to demand arbitration agreements from all patients. According to the company’s pitch, arbitration “allows both sides to present their case[s] to an arbitrator in private and to be granted a dispassionate decision, typically without publicity, as opposed to an emotional public trial before a jury not composed of your peers.”

As the trend spreads nationally, one Virginia lawyer offered a word of caution to doctors who might be eager to jump on the bandwagon. Scott Johnson said doctors would be wise to check with their malpractice insurance carriers before embarking on any home-grown arbitration program. The insurance policy might not cover claims in arbitration. “Doctors need to make sure that they don’t jeopardize their coverage,” Johnson said.

Nevertheless, Johnson, who lobbies for the medical profession in Virginia, said that he was unaware of any medical malpractice insurer pushing for mandatory patient arbitration agreements in this state.

Close this Window Bookmark and Share This Page

Save to Browser Favorites / Bookmarks

Print RSS Feed Ask backflip blinklist BlogBookmark Bloglines BlogMarks Blogsvine BuddyMarks BUMPzee! CiteULike co.mments

Connotea del.icio.us Digg diigo DotNetKicks DropJack dzone Facebook Fark Faves Feed Me Links Friendsite folkd.com

Furl Google Hugg Jeqq Kaboodle kirtsy linkaGoGo LinksMarker Ma.gnolia Mister Wong Mixx MySpace MyWeb

Netvouz Newsvine oneview OnlyWire PlugIM Propeller Reddit Rojo Segnalo Shoutwire Simpy Slashdot Sphere

Sphinn Spurl Squidoo StumbleUpon Technorati ThisNext Twitter Webride Windows Live Yahoo!

Email This to a Friend

Copy HTML: 

 If you like this then please subscribe to the RSS Feed.

More »