Filing a Medical Malpractice Claim Against Kaiser Permanente

When a Kaiser Permanente patient wants to bring a medical malpractice claim against a Kaiser health care provider, they can't just file a lawsuit in court. Instead, they must usually go through the arbitration process, under the terms of their membership. Here's what Kaiser patients need to know if they think they've been harmed by sub-standard medical care.

The Kaiser-Patient Arbitration Agreement

Kaiser Permanente is a managed care consortium, providing health plans to millions of members—often through employers as health benefits—across several states, including California. Kaiser patients receive their care from a variety of facilities, doctors, specialists, pharmacists, and other health care professionals, all within the Kaiser network.

Regardless of where the health care is administered, all Kaiser members have signed (or indicated their acceptance online of) a binding arbitration agreement as part of their contract. Because of the arbitration agreement, an injured patient can't simply sue a doctor or hospital in court over harm caused by a treatment mistake; the patient must follow the rules laid out in the arbitration agreement.

What Is Arbitration?

Arbitration is a widely-used and accepted alternative to the traditional court-based civil 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 compensation ("damages") the plaintiff should receive, if any.

Just like with standard personal injury litigation, the arbitration process involves the parties asking for and exchanging information ("discovery") from each other, as well other pre-trial processes like settlement conferences. This pre-arbitration process is very similar to what the parties would go through in a standard lawsuit.

The arbitration "trial" itself doesn't 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 typically conducted in an office or conference room. However, the process still involves a thorough presentation of facts and informed application of law. Learn more about using arbitration to resolve a medical malpractice claim.

What's the Difference Between Arbitration and 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.

How Kaiser's Arbitration Process Works

In California, most Kaiser claims are arbitrated by the Office of the Independent Administrator, which bills itself as "a neutral, independent office responsible for administering arbitrations between Kaiser Foundation Health Plan, Inc. and its California health plan members."

Kaiser Patients Must Make a "Demand for Arbitration"

An injured Kaiser patient must submit a demand for arbitration to the administrator. The exact location/mailing address of the responsible administrator varies depending on the patient's residence, but it's usually included in the patient's records. The demand must provide:

• a short statement describing the patient's injury and how Kaiser is responsible (learn more about when it's medical malpractice—and when it isn't)
• the amount of money the patient is seeking
• the patient's name, address and telephone number (and the same for their attorney), if any, and
• the name of all people the patient believes responsible for the injury.

Choosing an Arbitrator for a Kaiser Medical Malpractice Claim

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.

Kaiser Medical Malpractice Arbitration Management Conference and Trial

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.

Can You Appeal a Kaiser Medical Malpractice Arbitration Ruling?

Courts are generally reluctant to overrule an arbitrator's decision. 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 damages award was severely disproportionate to the finding of liability.

If You're Thinking About a Kaiser Medical Malpractice Claim

The complex interplay of medical and legal issues inherent to medical malpractice lawsuits still apply to arbitration, including the testimony of qualified medical experts to establish:

• the accepted medical standard of care that applied to the patient's treatment scenario
• exactly how Kaiser or its employees fell short of meeting that standard, and
• how the patient was harmed by the sub-standard care.

Learn more about proving a medical malpractice case.

A Kaiser patient with a serious injury claim will almost always be better off at least discussing their case with an experienced attorney. Learn more about finding the right medical malpractice lawyer for you and your case.