It is routine practice for healthcare providers to ask patients to sign an arbitration agreement prior to receiving medical care. Often the healthcare provider buries the agreement in a large stack of documents that they ask you to sign. Patients do not even realize what they are signing. By signing the arbitration agreement, you are waiving your right to a jury trial. Healthcare providers do this because their lawyers have taught them that arbitration is often a more favorable forum for resolving potential disputes.
You do not have to sign an arbitration agreement to receive medical care. Utah law states, “[A] patient may not be denied health care on the sole basis that the patient . . . refused to enter into a binding arbitration agreement with a health care provider.” If your doctor insists on your signing the agreement, it is not a good sign. Choosing an alternative care provider would be wise.
Generally, arbitration is not as favorable of a forum for patients as a jury trial. In most cases, an arbitration proceeding functions very much like a court. There is, however, no guarantee that the arbiter will consistently adhere to the rules of evidence and procedure that help ensure that the hearing on the ultimate issue is fair. There is also no guarantee that the arbiter will be impartial. For these reasons, among others, G. Eric Nielson & Associates generally advises its clients not to sign arbitration agreements.
What if I have already signed an arbitration agreement?
If you have already signed an arbitration agreement, it may not be too late to invalidate the agreement. Utah law requires all healthcare arbitration agreements to include a clause that grants the patient ten days to rescind the agreement. If you are still within ten days of signing the agreement, you may send a letter to your healthcare provider invoking your right to rescind the agreement.
Keep a signed and dated copy of the letter rescinding the agreement and any evidence you can that shows the letter was given to the healthcare provider. Sending the letter via certified mail is a recommended means of giving the letter to your health care provider. Make sure, however, that it will arrive within the ten day time limit.
If you are outside the ten day window, you should still send written notification to your health care provider that you wish to cancel the agreement. Arbitration agreements automatically renew each year after they have been signed. Cancelling the agreement will prevent this renewal and protect your right to a jury trial for any disputes that arise as a result of future medical care.
Even if you are outside the ten (10) day window to rescind the agreement, there are situations where you may be able to invalidate the agreement. Speak with your attorney about this possibility. One of the main factors will be the context in which the agreement was presented to you. Think about the information provided to you, how it was provided to you, and whether there was any verbal instruction given. Write down what you remember happened so that your memory of the exchange does not fade.
If you try to challenge the sufficiency of the communications and context in which the agreement was presented to you, a judge will need to listen to, or read, your testimony. The judge will weigh your credibility against the credibility of the healthcare provider, and determine whether the agreement is enforceable. Truthfulness is of paramount importance. It is not worth lying to get out of arbitration. It will backfire later on.
If you are forced to participate in arbitration, do not despair. Although arbitration is not generally as favorable as a jury trial, it is a valid and effective way to bring your claim. Occasionally, arbitration produces results even more favorable than that anticipated in court.