In a recent case in Florida, a man was infected with flesh-eating bacteria through an infected needle at his doctor's office. Not only did the doctor provide the needle that infected the patient, but he also failed to notify the patient about the infection and did not instruct him to go to the hospital. When the patient tried to file a medical malpractice suit against the doctor, he discovered he had signed an arbitration agreement that prohibited him from filing a lawsuit.
Even though this case was in Florida, this situation could affect Kentucky residents as well. The following are some questions and answers about these arbitration agreements.
Q: What is an arbitration?
A: An arbitration is a hearing used to solve a dispute between two individuals. Rather than being argued in a courtroom before a judge and jury, both sides present their case to a panel of supposedly unbiased arbitrators. Oftentimes the panel is made up of experts selected by both parties.
Q: What is a medical arbitration agreement?
A: A medical arbitration agreement is a document signed by an individual that requires them to handle any dispute with the doctor or medical facility through arbitration rather than filing a lawsuit in court. In the case above, when the patient went to his doctor for a steroid shot, he signed an arbitration agreement saying he could not sue the doctor in court for medical malpractice. It also stated that the patient could not be awarded more than $250,000 in damages if the arbitrators ruled in his favor. This type of limitation may not be binding because it may conflict with state laws regarding caps on damages.
Q: What if I sign a medical arbitration agreement without reading it?
A: While this situation is evaluated on a case-by-case basis, it appears that most courts are upholding the agreements even if the patient states he didn't read it before signing. In the case above, a judge ruled that the agreement is binding even though the patient said he didn't read it because the agreement was clearly written and stated in large letters at the top that one should not sign it without reading it first.
Q: What other types of arbitration agreements might I encounter?
A: This type of agreement is used in many types of business. Another place that they are becoming more common is in nursing homes. Residents are being required to sign arbitration agreements stating they cannot file lawsuits for nursing home abuse or neglect before they are allowed to live at a facility. This type of arbitration agreement was recently upheld by the U.S. Supreme Court in a case where the State of West Virginia tried to say it was invalid.
Q: What can I do to protect my right to a trial by jury?
A: Make sure you read everything before you sign it. If the language on a document is unclear or you are not sure if you should sign it or not, don't sign it. Ask if you can have a copy to take with you and have it reviewed by a Kentucky attorney.
If you have signed a medical malpractice arbitration agreement or nursing home arbitration agreement and feel you or a loved one have been injured by medical malpractice or nursing home abuse or negligence, contact a Kentucky medical malpractice attorney such as the ones at Miller & Falkner to review the facts of the case and determine what action should be taken.
More doctors avoid jury trials, require arbitration agreement; The Palm Beach Post; Jane Musgrave; May 26, 2012