When it comes to resolving medical disputes, traditional courtroom trials and newer models like communication and resolution programs (CRPs) aren’t always the right fit. Trials are famously long and costly, while hospital-based CRPs may not suit complex cases involving practitioners from more than one organization. In certain circumstances, alternative methods of dispute resolution can better serve the needs of all involved parties and bring disputes to a swift, satisfactory close. Here, we take a closer look at two methods of alternative dispute resolution: arbitration and private trial.
Q: HOW DOES ARBITRATION DIFFER FROM PRIVATE TRIAL?
A: Both arbitration and private trial take place outside the courtroom and are often quicker, less expensive, and less formal than a traditional jury trial. In medical settings, arbitration is typically outlined in a contractual agreement that the patient accepts before treatment. Arbitrations are taken to a neutral third party arbitrator—a professional trained in dispute resolution and mediation—while private trials are presided over by a retired judge or another individual with industry expertise.
Q: CAN EITHER PARTY APPEAL THE RESULT OF A PRIVATE TRIAL OR ARBITRATION?
A: Most often, they can’t. Many arbitration clauses specify that the results of the arbitration are binding. In private trials, appellate rights are usually negotiated ahead of time. Appellate courts need an official record to review on appeal, which means evidence must be formally marked and admitted, and a court reporter must record testimony. In many cases, parties in a private trial waive the right to appeal in order to lower the costs associated with recording and preserving evidence.
Q: WHAT ARE THE KEYS TO A SUCCESSFUL ARBITRATION?
A: The groundwork for a successful arbitration is laid before a patient ever receives care. In a patient-provider healthcare setting, an arbitration clause is typically outlined in a contractual agreement that the patient reviews and signs before undergoing treatment.
Accordingly, a well-crafted patient agreement can provide a framework for smoother, faster dispute resolution. When health-care organizations include an arbitration clause in their patient agreements, it is important that the arbitration clause is clearly outlined, not buried, so patients understand the dispute-resolution process they’re entering.
Q: WHAT ARE SOME ADVANTAGES TO A PRIVATE TRIAL?
A: Private trials can greatly reduce the costs involved in litigation in several ways. Jury trials can last for weeks, requiring physicians to spend significant time in the courtroom and away from their practices, with a steep associated cost in both lost income and legal fees. By contrast, a private trial is a less formal process and can typically be completed in one week or less. Also, in a private trial, a physician’s presence may not be required for the entire time, and the physician may be able to return to work much sooner than they would with a jury trial.
Because private trials are less formal, there are many cost-saving alternatives for presenting evidence. For example, expert witness testimony can be presented by video or even by written declaration, which can result in significant savings for both plaintiffs and defendants when compared to the travel expenses and fees for presentation of live testimony at a jury trial. Because private trials are governed by a contract between the two parties, there is flexibility in the terms that can be negotiated. When it is appropriate, these contracts can, for example, be used to cap the damages that can be recovered by plaintiffs, limit discovery during the case, or limit the number of experts called at trial, which can result in further cost savings over a public trial.
Q: WHEN MIGHT PRIVATE TRIAL BE LESS ADVANTAGEOUS?
A: Both parties must agree to resolve their dispute in a private trial. When that agreement can’t be reached, or some aspect of the case lends itself to a courtroom setting, a jury trial may be the better option for both parties. In medical cases involving juries, properly educating the jury about the complexities of the case can help support a fair resolution.
At Physicians Insurance, we feel confident about our ability to work toward a fair outcome, whether the parties involved choose traditional or alternative means of dispute resolution.
Eric A. Norman, civil litigation attorney with FAVROS Law in Seattle; Beth Cooper, Physicians Insurance senior claims representative.