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"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

Patient’s Representative Required to Arbitrate Medical Malpractice Claim

Posted: March 16, 2011 Filed under: Case Law, Commentary, Law-Related News

In this article, a federal judge is quoted as having a concern about “[t]he dramatic decline in the use of jury trials to resolve civil disputes.” According to the article, 11 percent of civil cases filed in federal courts were resolved by juries in the late 1960s. By 2009, the percentage had dropped to a mere 1.2 percent. That means only about one out of every 100 lawsuits filed actually goes to trial before a jury in federal court. The reasons are several, but fans of the jury system are concerned.

A case decided by the Florida First District Court of Appeal today illustrates one reason for the decline. It also illustrates the direct, and some would argue negative, effect on ordinary people.

Franks v. Bowers involved claims for wrongful death and medical malpractice stemming from the death of a patient who received medical care provided by the defendants. According to the court, the patient signed a document providing that “any negligence claim relating to the diagnosis, treatment, or care of Patient . . . shall be resolved by arbitration . . . .” The agreement limited the damages available to the patient in the event of negligence, and it required that “any negligence claim relating to the diagnosis, treatment, or care of Patient . . . shall be resolved by arbitration . . . .”

When the representative of the deceased patient’s estate filed the lawsuit, the defendants asked the trial court to compel arbitration. The trial court granted the motion to compel arbitration and required the parties to submit their claims to an arbitrator rather than a judge or jury. The trial court held that, by signing the agreement, the patient agreed to mandatory arbitration. The court of appeal affirmed, saying that the trial court “properly construed and applied the arbitration clause.”

Under this decision, in order to escape a contract providing for arbitration of disputes, a health care patient must either demonstrate that the agreement violates public policy or is unconscionable. “[U]nconscionability relates to the procedural manner in which the agreement was obtained, and substantive notions of basic fairness.” In other words, it isn’t enough that an agreement to arbitrate was obtained in unfair circumstances. The literal terms of the agreement must also be so unfair as to deprive the patient of basic fairness. Fewer rights and remedies is probably not enough. The Franks court said the patient’s representative “has not made that necessary showing.”

It is important to note that, although the case involved claims of medical negligence, the court’s decision is not about whether the health care providers were actually negligent. They very well may not have been.

The point is simply this: Plain contract language means what it says and will probably be enforced. A person who signs any contract without reading it or without understanding what they are signing does so at his or her own peril – and, in this case, to the peril of the jury trial system on which this country was founded.

Admitted: Florida, Kansas, New Mexico (inactive)