Kaiser patients wishing to sue for medical malpractice must go through Kaiser's arbitration process. Generally, the results reached in the arbitration process will be upheld by a court, although there are narrow exceptions to that rule. This article discusses how the Kaiser arbitration process works if you want to bring a medical malpractice claim, and how arbitration decisions might be overruled.
Kaiser Permanente is a managed care consortium, typically referred to as an HMO. Kaiser patients may receive their care from a variety of distinct Kaiser hospitals and medical groups. Regardless of where the health care is administered, all Kaiser patients have signed a binding arbitration agreement before being granted membership. Because of the arbitration agreement, an injured patient cannot simply sue the responsible doctor in court -- he or she must follow the arbitration process.
Arbitration is a widely used and accepted alternative to the traditional court-based lawsuit system.
Generally, the two parties try their case before a neutral third party (the arbitrator). The arbitrator then decides the case and decides what kind of injury damages (compensation) the plaintiff should receive, if any.
Just like with standard personal injury litigation and trials, the arbitration process involves the parties asking for and exchanging evidence ("discovery") as well other pre-trial processes like settlement conferences. This pre-trial process is very similar to what the parties would go through in a standard lawsuit.
The "trial" itself does not involve a judge or jury, just the parties, their representatives and the neutral arbitrator. Many of the rules of evidence are more relaxed in an arbitration and the "trial" is conducted in an office or conference room. However, the process still involves a thorough presentation of facts and informed application of law.
Arbitration should be distinguished from mediation. Mediation is essentially an attempt at settlement, where both sides submit briefs, but no evidence, and then negotiate through a neutral mediator. If the mediation fails, the case moves on to arbitration or standard litigation. While arbitration is a replacement for standard litigation and trial, with potentially binding results, mediation is not.
Kaiser claims are arbitrated by the Office of the Independent Administrator. An injured Kaiser patient must submit a demand for arbitration to the administrator. The exact address of the responsible administrator varies depending on the patient's residence, but it is usually included in the patient's records. The demand must provide:
Within three days, the administrator will send each party a randomly-generated list of twelve arbitrators to choose from. The parties can also agree on a neutral arbitrator from outside the system if the arbitrator is otherwise qualified and follows the system's rules. The parties then have 20 days to return their arbitrator choices. The administrator then selects an arbitrator to serve on the case, based on the parties' selections.
The arbitrator is required to hold an arbitration management conference within 60 days of being appointed. At the management conference the arbitrator and the parties set deadlines for remaining events, including the mandatory settlement meeting and the arbitration hearing date.
Finally, if no settlement is reached, the arbitrator will conduct the "trial." With some exceptions, the system is designed to resolve the case within 18 months from the time the administrator received the patient's demand letter.
Courts are generally reluctant to find that an arbitrator's decision is mistaken. Typically, a patient trying to overturn an arbitration decision must show that some kind of fraud was involved, that there was simply no possible way that the evidence supported the arbitrator's decision, or that the damage award was severely disproportionate to the finding of liability. Having arbitration results overturned by a court is rare, but it is not impossible.
Just because arbitration does not involve a jury trial, that does not mean that Kaiser's arbitration procedure should be attempted without the aid of an attorney.
The complex legal rules involved in medical malpractice lawsuits still apply to arbitration, including the use of expert proof of a breach of accepted medical standards. A Kaiser patient with a serious injury claim will almost always be better off at least discussing their case with an experienced medical malpractice attorney.