Most medical malpractice claims are filed against doctors and hospitals, but sometimes cases are filed against other types of corporate entities, such as Kaiser Permanente. In some areas of the country, a medical malpractice claim against Kaiser cannot proceed as a typical lawsuit, but must go through mandatory arbitration. We'll explain what that means, and what to expect, in this article
What is Kaiser Permanente?
Kaiser Permanente is an integrated managed care consortium of companies that is a health maintenance organization (HMO). In an HMO, almost all patient care has to begin with and be approved by the patient’s primary care physician, and the patient generally has to use health care providers within the HMO network.
Can I File a Medical Malpractice Lawsuit Against Kaiser Permanente?
Whether you can file a medical malpractice lawsuit against Kaiser Permanente depends on your state’s law. In California, most, if not all, medical malpractice claims against Kaiser Permanente must go to binding arbitration because Kaiser Permanente’s health insurance contract contains a mandatory arbitration provision, and the California courts have ruled that the arbitration provisions are binding.
Bottom line: An injured person cannot file a medical malpractice lawsuit against Kaiser Permanente in California.
However, in other states where Kaiser Permanente operates, medical malpractice victims can still file medical malpractice lawsuits, at least in some types of cases, although this situation may change at any time. For further information about the law in your state, you should contact a qualified medical malpractice attorney in your state.
What is an Arbitration Claim for Medical Malpractice -- How Does It Work?
Medical malpractice case arbitration is a special legal procedure that takes place outside of the public judicial system. In general, arbitration is not governed in any way by the courts. Because arbitrations are private matters, they are governed, not by state law, but by the contract between the parties in the arbitration claim.
In a medical malpractice case, the contract that sets up the arbitration is the health insurance contract. If you are in a state, such as California, where medical malpractice claims against Kaiser Permanente usually have to go to arbitration, you would have to read your health insurance contract to determine exactly what the arbitration provisions and rules that apply to your claim are.
Beginning an Arbitration Claim
You would need to look at your health insurance contract to determine how arbitration would proceed in your case, but, in general, arbitration claims are heard, not by juries, but by an arbitrator or by a panel of three arbitrators.
When there is a panel of three arbitrators, many arbitration agreements allow each party to select one arbitrator from an approved list, and then the two arbitrators select the third arbitrator. The arbitrators in medical malpractice cases can be doctors, lawyers, or other types of specialists in health care.
Generally, the patient would make an arbitration claim by sending a letter to the proper person, as described in the contract, demanding arbitration and perhaps sending a filing fee as well.
A demand for arbitration generally has to specifically identify the defendants (i.e., doctor and hospital) and the precise details of the claimed malpractice. A demand for arbitration generally has to be sent to a particular person or contact. This is important. Defendants in arbitration claims have successfully avoided arbitration because the arbitration claim was sent to the wrong address or even to the wrong person at the right address.
What is the Arbitration Process Like?
Arbitrations proceed very similarly to lawsuits. After the defendant (often called a respondent in arbitration cases) files its response to the arbitration claim, the arbitrators will schedule a case management conference to set up the pretrial investigation process (called “discovery” in both litigation and arbitration) and to set a discovery deadline.
The discovery process in arbitrations proceeds like discovery in lawsuits. Each side sends written questions (called interrogatories) and document requests to each other, and each side can take depositions. If either side is dissatisfied with the opponent’s responses to discovery, the lawyer can file a motion with the arbitrators.
After discovery is completed, the case will then be scheduled for an arbitration hearing, and the parties will discuss settlement, just like in a regular lawsuit. If the case can be settled, that is the end of the case. If it can’t be settled, then the arbitration will take place. Arbitration hearings proceed very similarly to trials. The arbitrators serve as the judges, and the lawyers question the witnesses. After all of the evidence has been submitted, the arbitrators will then issue a written decision.
What Happens If I Want to Appeal the Arbitrators’ Verdict?
Unfortunately, in most states, the losing side has a very limited ability to appeal to the courts from an arbitration decision. Basically, in most states, an arbitration decision is almost always final.
What is the Difference Between a Trial and an Arbitration in a Medical Malpractice Case?
The real difference between an arbitration and a jury trial in a medical malpractice case (and in any personal injury case) is that verdicts tend to be lower in arbitrations than in jury trials. The reason for this is that arbitrators evaluate the evidence very neutrally and unemotionally, whereas juries can sometimes get emotional and issue what are called “runaway” verdicts -- a verdict that is almost too high for the type of injury.
It is the potential for runaway verdicts that scares insurers and causes them to keep their settlement offers fair. In an arbitration, there is no chance of a runaway verdict, and so settlement offers in arbitrations are lower.