Broward Injury Lawyer Blog
Recently, the North Carolina Supreme Court took on the issue of whether an arbitration agreement can be enforced in a medical contract. In a 4-2 decision, the court ruled plaintiff patient and his wife don’t need to go to private arbitration with the doctor and surgical practice for permanent injuries plaintiff suffered when defendant doctor performed surgery on him eight years ago. 
Plaintiff went to the doctor for repair of a hernia. When he made his first appointment with the surgeon, he was handed a huge stack of paperwork to sign, which defendant doctor’s office routinely presents to new patients, along with other documents, prior to the first time the doctor meets with the patient. Included in that stack of papers was a legal document, known as an arbitration agreement, in which plaintiff signed away his right to have any future disputes with the doctor – including those pertaining to medical malpractice – resolved by a court of law. Instead, any disputes would be handled through a private arbitration firm.
This practice has become increasingly common, and the Florida Supreme Court encountered this very issue with regard to medical malpractice claims in a 2013 case – and reached a very similar conclusion.
In the Florida case, a man sought treatment from defendant doctor. In a four-page financial agreement he signed prior to surgery, there was a short provision that he initialed that was an arbitration agreement. It indicated that any claim of negligence relating to diagnosis, treatment or care of patient had to be resolved by arbitration. Plaintiff signed this. He then underwent surgery, during which the surgeon reportedly lacerated a vein during surgery. However, this was not revealed to plaintiff following the procedure and he was sent home. Two days later, he was rushed to the emergency room for severe pain. It was there a CT scan revealed the damage. The man remained hospitalized until his death.
When his wife filed a medical malpractice lawsuit on her late husband’s behalf, the doctor’s office sought to enforce the arbitration agreement, arguing that it was binding. Although the trial court ruled in favor of the defendant, it noted “substantial reservations.” The First District Court of Appeal affirmed, but the state supreme court reversed. In its ruling, the court held that the agreement was void as to public policy.
The court held that under the Medical Malpractice Act provision that provides for a voluntary binding arbitration agreement in medical malpractice claims, the key word here is “voluntary.” Arbitration agreements can provide incentives for both claimants and defendants by reducing attorney’s fees, litigation costs and delays. However, the court ruled in this case that the the “substantial incentive” for plaintiff in that case was removed because the agreement wasn’t voluntary, and it also removed the concession of liability on the part of the provider. Without any incentives to claimant, the agreement was nothing more than an attempt to limit the injured’s rights and circumvent the proper remedies.
In the more recent North Carolina case, that agreement too was void against public policy. Plaintiff admitted to signing the agreement, even though he hadn’t read it, but the court held that by that point, he had placed trust in his doctor. He considered the paperwork a formality. The arbitration agreement was given to him in a stack of other medical paperwork that was necessary to complete before treatment and there was no explanation given to him by office staffers that this was a special agreement that would require him to forfeit certain legal rights. Further, the agreement doesn’t indicate that by signing it, the patient waives his or her right to a trial. There is nowhere in the agreement that the words, “judge,” “jury” or “trial” appear, and it does not indicate plaintiff can seek counsel from a lawyer before signing it.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
King v. Bryant, Jan. 27, 2017, North Carolina Supreme Court
More Blog Entries:
NHTSA: V2V Technology Could Prevent Thousands of Car Accidents, Jan. 7, 2017, Fort Lauderdale Medical Malpractice Attorney Blog
