Whenever a patient receives medical care, the healthcare provider rendering that care is obligated to use the level of skill, care, and knowledge that a reasonably careful provider would use in the same or similar circumstances. When due care is not used in the medical setting, the consequences can be catastrophic, as errors and omissions by doctors, nurses, or hospitals can easily lead to misdiagnoses, delays in diagnosis, or entirely new injuries not related to the underlying reason the patient sought medical assistance. In turn, these can lead to prolonged illness, permanent disability, or even death.
In most medical malpractice cases, the victim can file a lawsuit in court and seek compensation for the injuries they have suffered. However, when there is a valid arbitration agreement between the healthcare provider and the victim, the dispute may be forced into arbitration instead.
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Kaiser Permanente is one of the oldest health maintenance organizations (HMOs) in the United States. Its health insurance plan covers millions of people in both Southern and Northern California and, as of September 2020, its medical groups employed more than 17,000 physicians. But for all its size and organization, medical malpractice can still arise from care and treatment rendered by Kaiser’s healthcare providers.
Kaiser routinely enforces binding arbitration in medical malpractice cases. An arbitration clause is regularly included in the enrollment paperwork for Kaiser members and an arbitration notice is generally present in the Evidence of Coverage paperwork for each Kaiser individual plan, as well as the group policy paperwork for group plans. These arbitration clauses require Kaiser members to forfeit their rights to the court process and a jury trial for all medical malpractice claims, no matter the specifics of the case, and instead, submit to the authority of a third-party arbitrator in any such dispute.
If you or a loved one were injured through Kaiser Permanente’s malpractice or negligence, it is critical that you select a lawyer who has experience with these specific types of cases.
While normal civil lawsuits are usually filed with a court, presided over by a judge, and decided by a jury if they go to a jury trial, arbitrations work somewhat differently. Arbitration is a form of alternative dispute resolution meant to resolve disputes outside of a court of law. In arbitration, one or more third parties preside over the legal proceedings, which ultimately culminate in a hearing where evidence is presented, witnesses are called, testimony is taken, and arguments are exchanged.
The arbitration hearing can essentially be thought of as a private trial, as the basic elements of a trial, such as direct examination and cross-examination of witnesses, are still performed, but these procedures are not done within the confines of a courtroom. In arbitration proceedings, the party bringing the legal claim is known as the “claimant” and the party responding to and defending against this claim is known as the “respondent.” Despite the difference in terminology, the roles of these parties are the same as their civil court counterparts: plaintiffs versus defendants.
In cases where there is only a single individual hearing presiding over the arbitration proceedings, this third party is simply identified as the “arbitrator.” Usually, this individual is meant to be a “neutral arbitrator,” meaning that he or she is supposed to be impartial, unbiased, and disinterested to the outcome of the case. The role of a sole neutral arbitrator can be conceptually thought of as a combination of judge and jury: he or she is to hear the case fairly, decide what evidence is admissible and what is not, and determine who should prevail at the close of evidence.
Other cases may use a panel of arbitrators, where multiple people are tasked with hearing the case. Sometimes, the panel may include party-appointed arbitrators, often simply called “party arbitrators.” Whereas neutral arbitrators are usually appointed through joint agreement of both sides to the dispute, with both the claimants and respondents agreeing that the particular neutral can hear the case fairly, or by a specific process that is designed to result in an unbiased selection, party arbitrators are selected unilaterally by a single party. Depending on the applicable rules that govern the particular arbitration, party arbitrators may not be required to be neutral and can actually be partisans of the side that selected them.
A typical scenario where party arbitrators are seen involves a three-arbitrator panel: one party arbitrator chosen by the claimant, one party arbitrator chosen by the respondent, and one neutral arbitrator. In that setup, the party arbitrators assist in the decision-making process of the neutral arbitrator as the evidence is heard in the arbitration hearing. They may try to point out facts that most benefit their associated side, but final decisions still need to be made fairly by the panel, with the neutral often having the greatest weight or final say on a matter.
Arbitration hearings are often less formal than trials in a courtroom, as they may instead take place in a conference room in an office. However, they have just as much weight, for they are meant to result in a conclusive determination on all issues in dispute. Indeed, many arbitrations are meant to be “binding.” In a binding arbitration, the decision of the arbitrator or arbitrators at the end of the case is considered final and all parties are legally bound by that decision. The arbitration award in binding arbitrations can be enforced by courts and is generally not subject to challenge or appeal.
In many arbitration proceedings, the parties will generally engage in discovery and investigation before the arbitration hearing in effort to obtain relevant evidence, much like in a typical civil lawsuit before trial. This discovery and investigation may involve sending subpoenas or requests for medical records, propounding discovery, and taking depositions.
A major reason why arbitrations are enforced in many settings is because they are typically confidential and private. Arbitrations, being legal proceedings outside of a court, do not result in a court docket full of publicly available documents. Arbitration awards are also often confidential, with their specific details not subject to public disclosure. There are some exceptions however, most notably mandatory disclosures to state regulatory agencies, such as the Medical Board of California. If an arbitrator finds that a licensed healthcare professional was negligent and awards damages to the claimant, the details of that award may still be sent to the Medical Board or other licensing agency per state law so it may conduct any further investigation if warranted.
As with a medical malpractice claim brought before a court of law, the injured party needs to prove the following in order to prevail in a Kaiser arbitration proceeding:
Healthcare providers must always render care and treatment within the standard of care, meaning that they must utilize the level of skill, care, and knowledge that a reasonably careful provider would use in the same or similar circumstances. When a healthcare provider fails to exercise this level of reasonable care and because of that failure, the patient is injured and suffers damages on account of that injury, it is medical malpractice.
Proving whether the standard of care was breached and whether the breach of the standard of care caused injury requires the input of expert witnesses. This is true in all forms of medical malpractice cases, including arbitrations against Kaiser.
Medical malpractice cases, whether they be lawsuits before a court or arbitration proceedings, can be extremely challenging affairs. It is strongly recommended that anyone considering medical malpractice litigation seek legal assistance with attorneys who understand the intricacies of these often difficult and complex cases.
