Why Wouldn’t a Doctor Choose Arbitration?

Posted on Tuesday, June 3rd, 2014 at 1:00 am    

Several recent Massachusetts court decisions have involved efforts by health care providers, primarily nursing homes, to force patients and their families to arbitrate claims involving personal injuries and death at the facilities.  Presumably, these facilities, who often attempt to have patients sign an agreement to arbitrate–and, at least implicitly–a waiver of their right to a jury trial at the time of admission, believe that arbitration will favor them in the event of a claim.  In other states, these efforts have gone even further, to the point where gigantic health plans such as Kaiser Health force arbitration on their patients as a matter of course.

The reasons these providers want arbitration have nothing to do with what’s good for patients.  They believe that an arbitrator will be less sympathetic to a seriously injured patient, and that they are more likely to be able to defend claims in that forum.  Further, they believe that, even if they lose the case, an arbitration award will be less than a jury verdict.  And finally, in many cases, patients have less access to information in an arbitration proceeding, making it more difficult to prove a claim.  (That some of these propositions are very debatable has not deterred providers from pursuing mandatory arbitration quite aggressively).

And so, a Massachusetts Appeals Court decision last week, Walker v. Collyer, was notable for the fact that it was a health care provider–a doctor who was working at a nursing home–who was trying to resist the plaintiff’s efforts to compel him to submit to arbitration.  Dr. Charles Walker argued that, because he was not a party to an arbitration agreement between a nursing home facility and the plaintiff’s decedent, he was entitled to a jury trial.  The Appeals Court agreed, finding that Dr. Walker, who had not signed the agreement, and perhaps was not even aware of its existence, was not bound to arbitrate the claims against him, even though they arose out of treatment he gave as a member of the facility’s staff.

At first blush, this seems like a strange reversal of the usual positions of patient and health care defendant, but it doesn’t take much work to figure out what’s really going on: yet another attempt to make it as difficult as possible for patients to receive compensation for their injuries.  The Appeals Court’s holding means that the plaintiff cannot join her claims against the doctor and the facility, but will have to bring and litigate them separately–the claim against the facility in an arbitration proceeding, and the claim against the doctor in Superior Court.

That is a terrible result for the plaintiff.  The economic consequences are clear: two proceedings in two venues,  two sets of expenses for two separate cases.  It’s going to cost a lot more than even the normally expensive malpractice process.  But the real detriment to the plaintiff is strategic.  In each case, the health care defendant can blame the “empty chair”–the provider who is absent from the proceeding.  So in the arbitration proceeding, the nursing home can direct attention to the absent doctor, while in the Superior Court trial, the doctor can lay off responsibility onto the facility and the “system.”  If both were defendants in a single case, that couldn’t happen, because one or the other would have to be at fault.  But because no factfinder will be able to consider the interaction of the two defendants in a single proceeding, both may escape liability by blaming the other.

Viewed strictly as a matter of contract law, it’s understandable that the Appeals Court held that the doctor wasn’t bound by an agreement he didn’t sign.  But that view ignores the realities of the situation: that the doctor is an integral part of the facility’s care, and that the plaintiff’s difficult job has been made yet harder and more costly.