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.
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,
call us today at (440) 333-3800.