The study also invited physicians to list the reasons why it uses arbitration agreements. The survey showed that 57% of respondents said they were acting “on the recommendation of their insurer”; 31% said it was the policy of their practice group; and 34% thought arbitration was a cheaper solution. Opponents of the agreements fear that arbitration against the patient will be weighted. Doctors` lawyers are more likely to develop relationships with arbitrators, they say, which, in turn, can only give the applicant a symbolic arbitral award to continue the activity of doctors. The Supreme Court said that the FAA applies to all disputes related to intergovernmental trade, and that the FAA should be widely read to require arbitration if the contract contains a compromise clause. The judicial opinion is that activities in the health sector are interstate exchanges, because navigation is purely medical, that laboratory tests, the recruitment of doctors, the obtaining of Medicare funds, the treatment of non-governmental patients and extra-state offices cross borders. Unlike mediation, mediation is an informal process in which an impartial third party facilitates a negotiated voluntary settlement between the parties to the dispute. If mediation efforts fail, however, the parties may resort to a formal judicial decision; Unlike arbitration, mediation does not close the door to future litigation. Schmid noted that “it is interesting to note that there are more distinctions for complainants in the arbitration proceeding than in the Superior Court,” a statement that ignores the fact that most medical malpractice cases are settled by courts.
Despite criticism that patient-physician arbitration agreements can violate public order by limiting the sacred right to a jury, the legal system has favoured arbitration agreements. For example, the Tennessee Supreme Court in Buraczynski v. Eyring, decided that arbitration agreements between doctors and patients are not in themselves non-hard as opposed to public order. The Madden Foundation v. KaiserShospitals clarifies a common opinion between the courts. When a patient who had agreed to settle all cases of maladministration and the resulting claims against the hospital filed a lawsuit, the California Supreme Court dismissed the appeal and ordered arbitration. Once the arbitrators have been selected, cases are presented to the arbitrators in order to make their decision. Its judgment is binding, which means that it will no longer be able to be challenged in the future. Other notable differences between arbitration procedures and traditional disputes are: no one should be forced to arbitration without proper consent, and no patient expects to enter into such an agreement in a medical practice.
Forced arbitration proceedings can be particularly damaging in cases of medical malpractice, where the damage can be personal and devastating. Fortunately, an appeal may be available if the arbitration agreement can be invalidated by a medical misconduct lawyer. There are several practical steps you can take to better protect yourself and your family from signing your right without knowing it during a routine medical appointment.