HealthLawProf Blog

Editor: Katharine Van Tassel
Case Western Reserve University School of Law

Monday, November 10, 2014

Guest Blogger Assistant Professor Marc D. Ginsberg: Enforceability of Voluntary Binding Arbitration of Medical Negligence Claims

GinsbergIs a physician entitled to condition medical treatment upon the patient’s “agreement” to submit future medical negligence claims to arbitration and waive the right to a jury trial? Is such an “agreement” ethical and enforceable? These are issues of concern in Florida, which has a statute, F.S.A. § 766.207, providing for voluntary binding arbitration of medical negligence claims. However, the recent appellate opinion in Santiago v. Baker, 135 So. 3d 569 (Fla. App. 2d Dist. 2014) supports non-statutory arbitration, which the patient had not requested.

In Santiago, the parents of a child suffering from severe birth injuries sued a physician and clinic for medical negligence arising from prenatal care. An arbitration agreement was signed by the child’s mother (but not by the father) before conception occurred. The clinic successfully requested arbitration pursuant to the agreement. The parents did not request arbitration and never requested the application of the Florida arbitration statute. The parents appealed the order compelling arbitration.

The Court of Appeals affirmed the order compelling arbitration, approving non-statutory arbitration, noting that Mrs. Santiago “willingly signed the arbitration agreement.”

The concurring opinion implicated “health literacy” – the notion that patients are not able to understand physician communications due to marginal literacy and age. In reading the concurrence, I was reminded of Tunkl v. Regents Of The University Of California, 383 P.2d 441 (Cal. 1963), in which the Court held a release of liability provision in a hospital admission form violative of public policy, constituting a contract of adhesion.

Certainly, a patient may be willing to sign any document required by a physician’s office without understanding its significance. If other physicians and clinics have adopted this practice, the patient may not have the choice of simply seeking treatment elsewhere in order to avoid the arbitration “agreement.”

A more recent, very brief per curiam opinion in Crespo v. Hernandez, 2014 WL 5392937 (Fla. App. 5th Dist., October 24, 2014) takes issue with Santiago. These cases may be on a collision course. Those of us teaching classes which concern the physician-patient relationship might continue to monitor Florida law.

-Assistant Professor Marc D. Ginsberg

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