Resolving Disputes
Through Contractual Arbitration

Traditionally, medical malpractice suits have been resolved through litigation, a public process that is time consuming, expensive, and stressful for both sides. The high financial and emotional costs of litigation have given rise to an increase in the popularity of contractual arbitration, an alternative method for resolving disputes that allows the parties to define the process.

Defining the Process

The parties can choose to resolve their dispute informally, with little prehearing procedure, or they can agree to resolve their dispute formally, with extensive procedural protocols. If the parties have entered into a proper contractual arbitration agreement, the dispute will be resolved with finality and with very limited opportunity for review by the courts.

Arbitration Is Not New

California physicians have used physician-patient contractual arbitration agreements as an alternative to the California civil jury system since the 1920s. With ever-increasing runaway jury awards and civil litigation costs, contractual arbitration may be a valuable and viable alternative to resolving disputes in court.

Although choosing to arbitrate does not guarantee that a physician will achieve a better result than in a jury trial, in some cases arbitration has proven to be faster, more flexible and efficient, and can result in a more predictable outcome.

The key to an effective arbitration program is developing an agreement that clearly sets forth the rules, procedures, and provisions of the process. Each party, represented by qualified counsel, presents its case and offers evidence and expert witnesses. Presenting a quality defense is as important in arbitration as it is in a jury trial.

The Court’s Role

There are very limited options for asking the superior court to appeal the award if one of the parties is unwilling to abide by the arbitrators’ decision. The dissatisfied party may petition the superior court to “vacate” the award; the other party may petition for an order confirming it. Except under very limited circumstances, the superior court is not authorized to review any factual or legal errors made by the arbitrators.

If the superior court grants the petition to confirm the award, a judgment is entered, which has the same effect as a judgment entered after a trial. There is no right to appeal the judgment other than the same limited grounds to vacate an award, and arbitration awards are seldom reversed by an appeals court.

Advantages of Contractual Arbitration

An arbitration is often heard in a private conference room, with the results not generally made public. By contrast, a trial is an open proceeding that the public may attend and where the results are monitored and published. It should be noted, however, that regardless of whether the matter is tried or arbitrated, all reporting requirements still apply.

Medical malpractice claims often present complex standard of care and causation issues that require a lay jury to understand and to form an opinion based on competing expert testimony. Arbitration allows each party to put its dispute before knowledgeable, neutral arbitrators. Too often, runaway jury awards appear to result from an emotionally inflamed response rather than from an impartial analysis of the science that the jury was asked to decide.

In arbitration, it is unusual for arbitrators to return a verdict that appears to be the product of passion or prejudice.

If you have questions on physician-patient contractual arbitration, please call (800) 421-2368, extension 1243.

The guidelines suggested here are not rules, do not constitute legal advice, and do not ensure a successful outcome. The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.


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