Patients Have the Right to Choose or Reject Arbitration

We have all experienced the mound of paperwork we are required to fill out when we go to a new doctor for the first time. Slipped in and included with the stack of papers will undoubtedly be an arbitration agreement. Such an agreement provides that if any claim arises between the patient and the health care provider, the patient agrees NOT to bring a legal action against the health care provider in court. Instead, the patient agrees that any such claims will be resolved through arbitration.

Arbitration proceedings are decided by an arbitrator or panel of arbitrators instead of a jury. They are private proceedings instead of public. Arbitrators are usually lawyers or retired judges who are familiar with the types of claims at issue. Arbitration proceedings take place in conference rooms not in courts of law. There are many other distinctions between arbitration and litigation. Whether or not a particular claim is better suited to be determined by an arbitrator in an arbitration proceeding or by a jury in a court of law depends on a number of factors that cannot be known until after the claim arises.

Therefore, when a patient is asked to sign an arbitration agreement at the beginning of his/her relationship with a healthcare provider and before any claim has arisen, the patient is essentially being asked to give up their right to bring the claim to a jury of their peers.Blindly giving up this right may be harmful to the patient if a claim later arises that would be better decided by a jury than an arbitrator.Consequently,patients should avoid signing arbitration agreements until they fully understand the legal ramifications of such a decision and can determine that arbitration is the best place for their claim to be heard.

Arbitration agreements are most often given to patients by the front desk clerk with instructions to “fill out and sign all paperwork and return it to the front desk.” In my personal experience, the office clerk has never informed me that I actually do not need to fill out the arbitration agreement—that, in fact, I have every right under Utah law to DECLINE to sign the arbitration agreement. Because of these front desk protocols, many patients believe that when they are given an arbitration agreement by a healthcare provider, they have no choice in the matter and must sign the agreement. This is not true. It is important for every patient to know and understand that while you are free to choose arbitration, you are NOT REQUIRED to do so and a health care provider cannot compel you to choose arbitration or refuse to provide medical care to you if you decline to sign the agreement.

Simply stated, patients have the right to choose or reject arbitration. Once a patient becomes aware of this right, what should the patient consider in making his/her decision?In almost every situation, there will be both pros and cons to resolving claims through the arbitration process instead of in a court of law. The problem, however, with blindly signing arbitration agreements before there is even a claim to be resolved is that you cannot possibly know the circumstances of the claim and whether or not it would be best to arbitrate it or resolve it by more traditional means.By declining to sign the arbitration agreement when you initiate treatment with a healthcare provider, you are preserving your right to bring any claim you may later have against the health care provider in a court of law. That does not mean that you could not later agree to arbitrate if the situation giving rise to the claim would be better suited for arbitration than litigation. Consequently, in choosing NOT to sign the arbitration agreement, you preserve your right to litigate and give yourself time to seek the advice of an attorney to help you determine whether arbitration or litigation would be best for your particular claim.

The lawyers at Eisenberg Gilchrist & Cutt have helped their clients resolve hundreds of claims through both arbitration and litigation with great success. However, not all claims lend themselves well to both processes, so it is critical that you, as the patient, take steps to preserve all of your options so that when and if a claim arises, you can then determine with the help of legal counsel, which process will best serve your needs.

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