Archive July 2017 XVIII, No. 7

Medical Malpractice: Should Patients Sign Arbitration Agreements?

They often unknowingly forfeit their right to sue doctors in courts of law

Devin O'Brien, JD

arbitration agreement DISTINCTIVE Make the arbitration agreement a clear and separate part of the intake process so patients know exactly what they're signing.

When a patient signs an arbitration agreement, he gives up his right to a jury trial before the surgeon lays a hand on him — and the surgeon dodges the prospect of a medical malpractice lawsuit. But as an ongoing case out of North Carolina shows, these agreements aren't as ironclad as they might seem.

In January, the Supreme Court of North Carolina decided that a patient and his wife could pursue a malpractice claim against a surgeon and his practice over injuries sustained during a hernia repair performed in 2009 — even though the patient signed an agreement to engage in "alternative dispute resolution" in the event of any dispute arising from the surgery (osmag.net/Ub4ShB). Here are 4 lessons we can take away from this case.

1Be up front. One reason the court let this case go to trial was the fact that the surgical practice, Village Surgical Associates of Fayetteville, N.C., lumped the arbitration agreement in with several intake forms while the patient, Robert E. King, was in for a pre-surgical consult. Mr. King later acknowledged that he didn't read any of these documents, believing them to be "a formality."

None of that would have mattered much had the surgery to repair a bilateral inguinal hernia been uneventful. But during the case, the surgeon injured Mr. King's distal abdominal aorta, which resulted in abdominal bleeding. The surgeon was able to repair the injury, but the remedial procedures that followed led to the occlusion of an artery, a thromboembolism in the right leg and acute ischemia in the right foot, according to court records.

In September 2011, Mr. King and his wife filed a complaint against the surgeon and the practice, seeking damages for medical malpractice. In turn, the defendants filed a motion seeking to have further litigation stayed and the arbitration agreement enforced. The plaintiffs then argued the agreement was unenforceable because the hiring of 3 arbitrators, as stipulated in the agreement, would create a financial burden.

For several years the case went back and forth between the trial court and the Court of Appeals, until it found its way to the Supreme Court of North Carolina. By a 4-2 decision, the court determined that the surgery center failed to fully disclose the nature and importance of the arbitration agreement to Mr. King when they gave him the document to sign.

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