Alternative dispute resolution agreements may not be binding in medical malpractice cases

November 28, 2012

Alternative dispute resolution agreements may not be binding when it comes to medical malpractice lawsuits.

Many doctors, clinics, hospitals, and nursing homes are attempting to use binding arbitration agreements and enforce them. While alternative dispute resolution agreements need to be looked at on a case-by-case basis, a recent out-of-state ruling 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.

In Walton v. Kindred Hospital Philadelphia, the plaintiff underwent gastric bypass surgery for a bowel obstruction and a perforated gastrointestinal tract. She developed an infection, her kidneys quit working, she was intubated, and then hooked up to a ventilator.

According to her medical malpractice claim, she developed bedsores while in a coma. Those bedsores grew worse on her transfer to another facility.

The plaintiff’s mother signed an alternative dispute resolution agreement, which was tucked in with other documents to be signed, including Medicare and informed consent forms. Once the woman discovered what she’d signed, she indicated that it 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.

The judge ruled the agreement as invalid, which means she did not waive her right to sue, since she did not have a medical power of attorney and was not her daughter’s agent. Therefore, she had no authority, express, implied, or otherwise, to sign an 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 that she’d given her mother permission to sign it.

If you have questions about an alternative dispute resolution agreement, medical malpractice attorney Chris Mellino welcomes you to contact our Cleveland office for a free consultation.