Binding arbitration means that the decision of the arbitration panel is final. Neither party can go to court to appeal the arbitrators’ decision, except on very limited grounds. That is why they call it “binding” arbitration – because both sides are bound by the arbitrators’ decision.

In agreeing to arbitration, the parties agree to give up their constitutional right to have any potential medical malpractice claim resolved in court. Instead, all medical malpractice claims are resolved by a panel of three arbitrators. The process starts with a notice from one party to the other demanding arbitration. The patient and the physician would each name one person to serve as an arbitrator. An arbitrator is like a judge, in that he or she listens to the evidence presented by both sides and decides whether malpractice occurred. These two arbitrators would pick a third arbitrator. This panel of three arbitrators would then set up rules about the witnesses and evidence each side could present, and they would set up a schedule for the arbitration. If necessary, the arbitrators could issue subpoenas to compel witnesses to appear at the hearing or to obtain documents or other evidence. At the arbitration hearing, each party will be represented by their own attorney. Each party will have the opportunity to present evidence and witnesses, and cross-examine the other party’s witnesses. All three arbitrators would listen to the evidence and participate in the decision. They would apply the same law that a court would apply, but the procedural rules are more relaxed and the hearing is less formal than a trial. Based on the evidence and the law, the arbitrators could award any amount or kind of damages that a court could award.

The primary difference between mediation and arbitration is that the patient(s) agrees to arbitration prior to receiving care and treatment, and the arbitrators' decision is binding. The mediation process is used only after a claim has been made and Notice of Intent to Pursue Litigation has been given. In mediation, nothing is determined unless the parties reach an agreement, which is reduced to writing and signed by the parties and their attorneys. In arbitration, the decision of the arbitration panel is binding on the parties, whether they agree with the result or not.

Medical malpractice lawsuits are often very lengthy and expensive for all parties. The high cost of malpractice lawsuits contribute to the rising cost of healthcare. As a result, many physicians have been forced to raise their fees, reduce their practices, or leave their medical practice altogether, threatening patients’ access to medical care. Arbitration is a relatively informal process of resolving disputes that is an alternative to the traditional court system. Through arbitration, patients and physicians both benefit because they are able to more promptly resolve malpractice claims and for less cost to each party. It is also believed that arbitration panels will help to avoid unreasonable jury awards, thereby further lowering costs. These cost savings would positively impact medical professional liability rates and the cost and availability of healthcare services.

The arbitration agreement applies to malpractice claims associated with both past and future care and treatment. In addition, the patient agrees that any controversy including, without limitation, claims for medical malpractice, personal injury, loss of consortium, or wrongful death arising out of or in any way relating to the diagnosis, treatment, or care of the patient by the physician, including any partners, agents, or employees of the provider of medical services, shall be submitted to binding arbitration as well.

Under the agreement, all claims based upon the same occurrence, incident, or care will be arbitrated in one proceeding. The agreement binds all parties whose claims may arise out of or relate to treatment or services provided by the physician, including the patient, the patient’s estate, any spouse or heirs of the patient, and any children of the patient, whether born or unborn, at the time of the occurrence giving rise to the claim.

Physicians must complete the order form and sign the arbitration participation agreement. Upon completion of this form and agreement you will receive an arbitration contract and video in the mail within 10 business days.

No. First Professionals will provide its arbitration agreement and video to its physician policyholders without charge provided that they complete the order form and sign a participation agreement.

Each physician will have to decide for themselves what is best for them in this circumstance after taking into consideration all ethical, legal, and contractual duties that are owed to the patient and/or third parties.

If a patient enters into the agreement and chooses to go to court anyway, the agreement says that the arbitration proceeding can go ahead without the patient, and he or she will be bound by the arbitrator's decision even if the patient does not participate.

First Professionals' arbitration program offers two alternative arbitration agreements. Both agreements are the same except for one key provision. One agreement (our form "A" agreement) requires patients to sign the arbitration agreement as a prerequisite to future treatment. The other agreement (our form "B" agreement) permits a patient to terminate the agreement for a period of 30 days from the date the patient signs the agreement. A failure to formally opt out of the agreement in accordance with the procedures set forth in the agreement within the opt out period will obligate the patient to follow the agreement.

No. A patient could attempt to invalidate the arbitration agreement with a claim that they were under duress due to the emergent or urgent condition at the time that they signed the agreement. Physicians should present patients with the arbitration agreement after the emergent or urgent condition has passed. Post-treatment signatures are feasible because past treatment is covered by the arbitration agreement.

Provided that a patient is not in an emergent or urgent condition, physicians will present the arbitration agreement to patients (or their representatives) and provide them with an area to view a video approximately six minutes in duration that explains the purpose and fundamentals of the arbitration agreement. After the patient and/or the patient’s representative have viewed the video they will be asked to sign the arbitration agreement. The patient and/or the patient’s representative should be given two copies of their signed arbitration agreement and the original should go into the patient’s file.

The video is very important because the manner in which an agreement is entered into is an important factor in determining its validity. Courts have struck down arbitration agreements due to arguments that an individual did not have any concrete knowledge of the agreement. In order to avoid this problem, a video was created to explain in basic terms the practical and legal effects of signing the arbitration agreement. This process is complimented by the fact that the patient, in signing the arbitration agreement, acknowledges that they watched the video, understood it, and had no further questions. In addition, the video performs another important service in that it relieves physicians and their staff from the burden of having to explain the arbitration agreement and it ensures that the message is clear, consistent, and reproducible in the event of litigation.

No. First Professionals will provide its arbitration agreement and video to its physician policyholders without charge provided that they complete the order form and sign a participation agreement.

Yes. The arbitration contract and video are offered in English and Spanish.

No. There is no premium discount at this time.

Use of arbitration agreements from other sources will likely not have the benefit of the extensive and careful analysis that has been employed by First Professionals. Therefore, we strongly recommend that our policyholders use our version of the arbitration agreement and video.

Each physician will have to carefully review their contractual arrangements with their managed care organizations to determine what effect, if any, implementing the arbitration agreement will have on their business relationship with their managed care organizations.

Yes, provided that you have coverage for the claim under the terms of your medical professional liability policy with First Professionals.

Information is provided within the Resources section of the Risk Management materials on our website. You can also request a detailed informational DVD by calling (800) 741-3742, ext. 3064.