The next time you’re filling out paperwork in the waiting room of a doctors’ office or nursing home, you might want to look for a phrase buried amid all the legalese and checkboxes. It’ll be something like, “Claims are decided by a neutral arbitrator.”
If it’s there, the provision will significantly change the way you can sue for damages if something goes wrong.
The New York Times this weekend investigated the rise of an opaque legal process called arbitration, which has been bolstered by two Supreme Court rulings in recent years.
Unlike jury trials, arbitration proceedings are wholly overseen by a retired judge or arbitration-trained lawyer. The Times report finds rampant bias and inconsistent rules within the process. “What rules of evidence apply?” one arbitration firm’s website asks, according to the story. “The short answer is none.”
According to the Times’ data, the deck is often stacked in favor of the corporate defendant. “Roughly two-thirds of consumers contesting credit-card fraud, fees, or costly loans received no monetary awards in arbitration,” the paper found. The arbitrator’s ruling is usually final.
It’s troubling enough when people can’t get a fair hearing for erroneous credit-card charges or wage theft. But arbitration has also crept into the health-care realm. The Times’ report notes a few such examples:
The family of a 94-year-old woman at a nursing home in Murrysville, Pa., who died from a head wound that had been left to fester, was ordered to go to arbitration … When an infant was born in Tampa, Fla., with serious deformities, a lawsuit her parents brought against the obstetrician for negligence was dismissed from court because of an arbitration clause … An ob-gyn’s office in Tampa, Fla., now informs expectant mothers that if problems arise—a botched vaginal delivery, a flawed C-section—the patients cannot take their grievances to court.
The American Arbitration Association and JAMS, two arbitration firms, told the paper that plaintiffs can dismiss arbitrators they fear are biased.