Binding Arbitration in Medical Malpractice Cases

Why Binding Arbitration?

Patel highlights several factors that make binding arbitration an attractive alternative to a traditional jury trial:

• Venue and Scheduling: In counties where trial dates are uncertain or backlogs are significant, arbitration offers a definitive date for resolution.
• Sophisticated Decision-Makers: Arbitrators, often retired judges, are frequently more capable of grasping complex medical nuances and standard of care issues than a lay jury.
• Mitigating Litigation Exhaustion: Arbitration can provide a faster path to justice for clients who may be emotionally or physically unable to endure a multi-year litigation process.
• Confidentiality Requirements: Hospitals and individual providers often agree to arbitration because it allows for confidential results, protecting their reputations from the publicity of a public trial.

Case Highlights

Patel discusses two recent successful outcomes achieved through this process:

Bowel Obstruction (Death Case): A case involving a fatal delay in treating a small bowel obstruction. This was an in-person arbitration that took four days instead of a projected two-and-a-half-week jury trial.

Cauda Equina Syndrome (Injury Case): A misdiagnosis case resulting in permanent neurological damage and bladder incontinence. This was handled via a two-day Zoom arbitration.

Strategic Considerations

The “Split the Baby” Perception: Patel references the belief that arbitrators are more likely to grant a recovery than a jury, which may be more prone to a defense verdict in a difficult medical case.

Arbitrator Selection: Finding a neutral arbitrator is critical; Patel notes that some mediators avoid arbitration because they fear being “blacklisted” by insurance carriers if they award a high plaintiff verdict.

The Arbitration Agreement: Patel stresses that the agreement must be “buttoned up,” often spanning 7–8 pages to cover pre-hearing submissions, evidence rules, and time limits.

Expert Testimony: Parties can agree to submit expert reports in lieu of live testimony to save on logistics and costs, though live testimony is still an option for critical witnesses.

The Importance of Formality

Despite the less formal setting, Patel treats arbitration with the same gravity as a courtroom trial. He utilizes music stands for questioning, follows the rules of evidence, and delivers formal opening and closing statements to ensure the client feels they have had their full “day in court”.