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Medical Malpractice Arbitrations

The Philadelphia Inquirer has a recent article that discusses the disturbing trend of pre-dispute arbitration in the medical malpractice context.  The article summarizes the pros and cons of pre-dispute agreements with the following:

Proponents say arbitration is faster, cheaper and fairer than trials, but critics say the secretive system can be weighted against consumers and makes it harder to track complaints or build legal precedents…Temple University law professor Bill Woodward thinks the growth of a private judicial system “is a pretty nasty legal development, I think, and it’s just crying out for correction from Congress.”

I agree that pre-dispute arbitration agreements are a dangerous trend.  My major objection to pre-dispute agreements is that the consumer, for all intents and purposes, doesn’t have the opportunity to receive counsel’s advice as to what the consumer is agreeing to.  For example, by signing an arbitration agreement, a consumer is likely agreeing to rules that the consumer doesn’t understand, may be agreeing to pay significant fees and expenses that might otherwise be avoided in a litigation setting, and may be agreeing to have the dispute resolved by a person or group that isn’t satisfactory for the impending dispute.

That’s not to say that arbitration is a bad process.  In fact, we have agreed to arbitrate medical malpractice cases where no pre-suit arbitration agreement exists.  But in those situations, the parties each have the advice of counsel, and the attorneys for each side are able to educate their clients about the pros and cons of the process and to negotiate a system that is fair to all parties.

As the article notes, the Arbitration Fairness Act of 2007 is slowly going through the process and might provide some relief for consumers.  But until then, beware.

Some of our other posts on arbitration:

    • The dangers of binding mandatory arbitration
    • How arbitration steals your day in court
    • Doctors requiring “no sue agreements”
    • The flight from arbitration

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