Alternative dispute resolution agreements may not be binding when it comes to medical malpractice lawsuits.
The practice of using binding arbitration agreements in advance of medical treatment is being used in Pennsylvania. Many doctors, clinics, hospitals and nursing homes are not only attempting to use binding arbitration agreements, but also enforce them. While alternative dispute resolution agreements need to be looked at on a case-by-case basis, a ruling in Philadelphia provides ammunition to get these agreements set aside. The judge in one case held that an alternative dispute resolution agreement, signed by a plaintiff’s mother, was not enforceable.
The case is an interesting one, and worth reading: Walton v. Kindred Hospital Philadelphia. The plaintiff, Watson, is suing the hospital for negligent care she received while there. According to the statement of claim, she developed bedsores while hospitalized at one hospital, and in a coma, which grew worse on her transfer to the Kindred Hospital.
The plaintiff first ended up in hospital after gastric bypass surgery to deal with a bowel obstruction and a perforated gastrointestinal tract. She passed out, developed an infection, her kidneys quit working and she was intubated, and hooked up to a ventilator.
The plaintiff’s mother voluntarily signed an alternative dispute resolution agreement, roughly at the halfway point of her daughter’s treatment at Kindred. The form was tucked in with other documents to be signed, including Medicare rights forms and consent forms.
While the mother did sign the agreement, the judge ruled it as invalid, and that she did not waive her right to sue, as she did not have a medical power of attorney, and was not her daughter’s agent. Therefore, there was no authority, express, implied or otherwise, for the mother to sign the alternative dispute resolution agreement for her daughter.
Furthermore, the hospital could not offer any evidence showing that the patient was aware of the alternative dispute resolution document, or gave her permission for her mother to sign it, or to submit to any type of arbitration process. She was in a coma when admitted and was not asked to sign the agreement. The mother, once she discovered what she had signed, indicated that document had not been explained to her, or brought to her attention. Had she known what it was, she would not have signed away the daughter’s right to a jury trial.
Each case is different and not all alternative dispute resolution agreements may be challenged in court. It would depend on the facts of the individual case, and this is why it is important to contact an experienced medical malpractice lawyer if you feel you have been the victim of medical negligence.