MEDICAL MALPRACTICE ARBITRATION

Prepared:December 1, 2001

THIS INFORMATION IS INTENDED TO GUIDE INDIVIDUALS IN RESEARCH FOR MEDICAL MALPRACTICE ARBITRATION. Much of the information was gained from a site developed by the law firm of McCullough, Campbell & Lane, a Chicago law firm with over 25 attorneys on staff. I have sited the state index that the firm listed after each state. I then cross-referenced many of the statutes to make sure that they were an accurate description of the current law.

There is a condensed version at the end of this listing that breaks down the fashion that states arbitrate medical malpractice claims. This should be helpful to find which states have similar statutes and possibly similar cases that may be used as persuasive cites. MEDICAL MALPRACTICE ARBITRATION- BY STATE ALABAMA

Alabama law allows arbitration of medical malpractice claims with the written consent of both parties. The agreement is binding and irrevocable. Ala. Code § 6-5-485 (1993). ArbLaw Web Site

ALASKA

Alaska mandates arbitration of medical malpractice claims if the parties do not agree to arbitrate. The court appoints a three-member panel made up of medical experts within the field in contoversey.

Alaska encourages voluntary arbitration by allowing a patient or health care provider to execute an agreement to arbitrate any dispute arising out of the treatment. The agreement must clearly state that it is not adesion or a prerequisite to receiving care. A.S. § 09.55.535. (Michie 1996). ArbLaw Web Site

ARIZONA

Arizona law does not mandate arbitration in medical malpractice actions. ArbLaw Web Site

ARKANSAS

Arkansas law does not mandate arbitration of medical malpractice actions. ArbLaw Web Site

CALIFORNIA

California law does not mandate arbitration of medical malpractice actions.

However, California does allow patients and health care providers to execute agreements to arbitrate under Cal. Civ. Proc. Code § 1295 (West 1982). ArbLaw Web Site

COLORADO

Colorado law does not mandate arbitration of medical malpractice actions.

However, Colorado does allow health care providers to place arbitration clauses in their contracts with patients so long as it is not an adhesion contract or a condition of service. Colo. Rev. Stat. Ann § 13-64-403 (West 1997). ArbLaw Web Site

CONNECTICUT

Connecticut law does not mandate arbitration or expert panels in medical malpractice actions.

However, if the parties agree, an expert panel made up of one attorney and two physicians will review the claim. Conn. Gen. Stat. Ann § 38a-33 (West Supp. 1997). They may enter a finding as to liability only, which is admissible in later court proceedings. Conn. Gen. Stat. Ann. § 38a-36 (West 1992). ArbLaw Web Site

DELAWARE

Delaware has mandatory medical malpractice review panels to prevent controversies from advancing to litigation. Del Code Ann. tit. 18, § 6803 (1989). The panel’s decision in effect allows the case to go to court if it shows that the health care provider failed to comply with the standard of care. Del. Code Ann. tit. 18, § 6811 (1989).

The patient as plaintiff can request the court to review the findings and to strike any portion of the panel’s opinion that is not supported by substantial evidence or if there is an error of law. Id

Here, the panel’s finding is used as prima facie evidence of negligence. The defendant can still argue that the finding is inaccurate except in cases where a foreign object was left in the patient, an explosion or fire from treatment or performing the operation on the wrong body part. Del. Code Ann. tit. 18, § 6853 and § 6812 (1989).

Unlike Alaska, the members of the review panel may not be required to testify in subsequent court proceedings. Del Code Ann. tit. 18 § 6812 (1989). ArbLaw Web Site

DISTRICT of COLUMBIA

The District of Columbia has a unique system where all cases, including medical malpractice, are eligible for arbitration. D.C. Super. Ct. Civil Arb. Prog. Rules, Rule I et seq. (1997).

Here, the arbitrator’s decision may be entered in a court of law as the final judgment. This would give the decision the same weight and validity as if a judge had made the decision. Rule X.

However, either party may instigate a civil suit after the arbitrator’s decision. If this is done, the evidence used in the arbitration may also be used in the court proceedings, but it cannot be identified as evidence used in arbitration and the jury cannot be told that there was an arbitration. Id. ArbLaw Web Site

FLORIDA

Florida law does not mandate arbitration in medical malpractice actions. However, judges may refer the cases to non-binding arbitration. Fla. Stat. Ann. § 766.107 (West 1997 & Supp. 1998))

Florida does have a unique system of voluntary arbitration that gives incentives to both parties. The system is used for the determination of damages. The defendant gets to limit damages in return for admitting liability. The plaintiff therefore has a guaranteed payout.

If the defendant refuses arbitration, the plaintiff may receive up to 25 percent of the award in attorney’s fees if he wins. Fla. Stat. Ann. § 766.209 (West 1997 $ Supp. 1998).

If the plaintiff refuses arbitration, he will only be able to recover economic damages (80% of lost wages) and no more than $350,000 in non-economic damages. Id.

If the plaintiff accepts arbitration, he may only receive 80% of lost wages for economic damages and the recovery cap for non-economic damages is lowered to $250,000 with attorney’s fees of 15%. Id.

The damage cap has been held to be constitutional. University of Miami v. Echarte, 618 So. 2d 189 (Fla), cert. denied, 510 U.S. 915 (1993). (put in case materials) ArbLaw Web Site

You can find many medical malpractice statutes, including arbitration, at ArbLaw Web Site

You may also find Malpractice Pre-suit Arbitration statutes at ArbLaw Web Site

GEORGIA

Georgia law does not mandate arbitration in medical malpractice actions.

However, after the alleged malpractice has occurred, the parties may agree to appoint a referee from the Superior Court. Ga. Code Ann. § 9-9-61 (Supp. 1997).

The findings of the arbitration panel have the same weight and effect as a final court judgment. The findings are also conclusive as to fact, so they cannot be overturned unless there is an error of law, fraud or unsupported by the evidence. Ga. Code Ann. § 9-9-80 (Supp. 1997). ArbLaw Web Site

The amended provisions and Bill Summary’s of medical malpractice arbitration claims (HB 78) are found at: ArbLaw Web Site

HAWAII

Hawaii has a flexible three-step process where medical malpractice claims go to an expert panel, arbitration and finally trial. Hawaiin law allows the plaintiff in a medical malpractice action to choose between arbitration or a hearing before a panel. Haw. Rev. Stat. § 671-16.5 (1995). This is to ensure a speedy process.

The first step, or the conciliation panel, reviews all potential cases and issues opinions based on liability and potential damages. This is a prerequisite to filing of the complaint in a court of law. Haw. Rev. Stat. § 671-16 (1995).

The second step, or arbitration panel decides negligence on part of the defendant and determines the amount of economic and non-economic loss as well as punitive damages. Either party may reject the opinion and proceed to the third step, or the trial court. Haw. Rev. Stat. § 671-16.5 (1995). ArbLaw Web Site

IDAHO

Idaho law does not mandate arbitration of medical malpractice actions but does require all claims be presented to an informal and non-binding hearing panel that is established by the Idaho state board of medicine. Idaho Code § 6-1001 to 1011 (1990). The findings are not admissible in any subsequent civil action. Idaho Code § 6-1011 (1990). ArbLaw Web Site

ILLINOIS

Illinois law does not mandate arbitration of medical malpractice actions.

However, Illinois does allow arbitration under 710 Ill. Comp. Stat. Ann. § 15/1 to 15/10 (West 1992). ArbLaw Web Site

INDIANA

Indiana law mandates a review panel for medical malpractice actions where the amount in controversy is over $15,000 unless both parties waive this option in writing. Ind. Code Ann. § 34-18-8-4 to 34-18-8-6 (West Supp. 1998).

The panel which consists of one attorney and three health care providers issue an expert opinion as to whether the defendant failed to comply with the standard of care in if the defendant’s actions caused the injury. Ind. Code Ann. § 34-18-10-3, § 34-18-10-22 (West Supp. 1998). Much like the Alaskan statute, the opinion is not conclusive but is admissible in subsequent litigation. Ind. Code Ann. § 34-18-10-23 (West Supp. 1998). ArbLaw Web Site

IOWA

Iowa does not mandate arbitration of medical malpractice actions. ArbLaw Web Site

KANSAS

Kansas law does not mandate but allows either party or the judge to submit the case to a medical screening panel. Kan. Stat. Ann. § 65-4901 (1992).

The panel’s opinion is admissable in subsequent court proceedings and either party may call the panel members as witnesses. Kan. Stat. Ann. § 65-4904 (1992). ArbLaw Web Site

KENTUCKY

Kentucky law does not mandate arbitration of medical malpractice actions. ArbLaw Web Site

LOUISIANA

Louisiana law does not mandate arbitration of medical malpractice actions, however all malpractice claims must be reviewed by a medical review panel. La. Rev. Stat. Ann.§ 40:1299.47(A) (West 1992 & Supp. 1997). Louisiana also allows patients to enter into arbitration agreements. Cases that go to arbitration are not reviewed by the medical panel. La. Rev. Stat. Ann. § 40:1299.47 (West 1992 & Supp. 1997).

The medical review panel, which consists of one attorney and three physicians, determines if the defendant failed to comply with the standard of care and whether or not the defendant contributed to the injury. Id.

The panel’s report, like the Alaska model, is considered as an expert opinion in subsequent litigation. Also, any party may call a member of the panel as a witness. Id. ArbLaw Web Site

MAINE

Maine law requires that all medical malpractice actions by filed with a pre-litigation screening panel. Me. Rev. Stat. Ann. tit. 24, § 281 & 2853 (West 1990 & Sup. 1997). The purpose of the panels are to resolve claims quickly and remove frivilous claims from the dockets. Id.

The parties may agree to make the panel’s decision binding or waive the process. Me. Rev. Stat. Ann. tit. 24, § 2853(s) (West 1980 & Supp. 1997). Since the panel cannot decide legal issues, the parties may agree to a hybrid method where the case is decided by the court as well as the panel. Id.

The opinion of the panel is not confidential and cannot be used in subsequent litigation unless the decision is unanimous in favor of either party. Me. Rev. Stat. Ann. tit. 24, § 2857 (West 1990 & Supp. 1997). ArbLaw Web Site

MARYLAND

Maryland law recently changed regarding mandatory arbitration for medical malpractice actions.

The former law required all claims to be reviewed by an arbitration panel to determine liability and apportion damages. Md. Code Ann, Cts. & Jud. Proc. § 3-2A-02, § 3-2A-05 (1995).

The parties could agree to waive the arbitration or reject the panel’s opinion, but the findings were admissable in subsequent proceedings. Md. Code Ann. Cts. & Jud. Proc. § 3-2A-06A, § 3-2A-06 (1995). http://www.mcandl.com/maryland.html

The Maryland Health Claims Arbitration Act and relevant sites are located at ArbLaw Web Site

MASSACHUSETTS

Massachusetts law requires all medical malpractice actions by reviewed by a tribunal consisting of a judge, attorney and physcian to determine if there is an issue of liability or if the injury was an unfortunate medical result. Mass. Ann. Laws ch. 231, § 60B (Law. Co-op. 1986 & Supp. 1992).

The panel’s opinion is admissible in subsequent litigation. Id. Massachusetts interestingly makes the claimant post a $6,000 bond for payment of defendants’ costs if the plaintiff is not successful at trial. Id. ArbLaw Web Site

MICHIGAN

Michigan law requires mandatory review of all medical malpractice actions before a mediation panel. Mich. Com. Laws Ann. § 600.4903 (West 1987).

The panel has fourteen days to determine standard of care. Mich Comp. Laws Ann. § 600.491 (West 1987). A party may reject the opinion, but must pay the opposing party’s actual costs if there is an unfavorable verdict. Mich. Comp. Laws Ann. § 600.4917, § 600.4921 (West 1987).

The parties may also agree to binding arbitration if the amount in controversy is less than $75,000. Mich. Comp. Laws Ann. § 600.2912g (West Supp. 1998). ArbLaw Web Site

1998 Medical Malpractice Litigation decisions, including arbitration, can be found at: ArbLaw Web Site

MINNESOTA

Minnesota law does not mandate arbitration of medical malpractice actions.

However, the courts are permitted to establish a system of non-binding arbitration. Minn. Stat. Ann. § 484.73 (West 1994 & Supp. 1998). ArbLaw Web Site

MISSISSIPPI

Mississippi law does not mandate arbitration of medical malpractice actions. ArbLaw Web Site

MISSOURI

Missouri law does not mandate arbitration of medical malpractice actions. ArbLaw Web Site

MONTANA

Montana law requires all medical malpractice claims not under an arbitration agreement be reviewed by a medical panel before filing a complaint. Mont. Code Ann. §§ 27-6-105 and 27-6-701 (1997).

Although the panel’s opinion determines whether or not the defendant is liable for malpractice, the decision is not binding and is not admissable in court. Mont. Code Ann. §§ 27-6-602, 27-6-606, and 27-6-704 (1997). ArbLaw Web Site

NEBRASKA

Nebraska law requires that all medical malpractice actions be reviewed by a medical panel before filing the complaint. Neb. Rev. Stat. §§ 44-2840 to 44-2847 (1993 & Supp. 1996).

The panel determines if the defendant complied with the standard of care and whether the damage suffered was the proximate cause of the defendant failing to act within the standard of care. Neb. Rev. Stat. § 44-2843 (1993).

Although the panel’s opinion is not binding, it is admissible in subsequent proceedings. Neb. Rev. Stat. § 44-2844 (1993). ArbLaw Web Site

NEVADA

Nevada law mandates all medical malpractice actions be reviewed by a screening panel before a complaint can be filed. Nev. Rev. Stat. Ann § 41A.016 (Michie 1996).

The panel decides if there was a reasonable probability of malpractice and that the patient was injured because of it. Nev. Rev. Stat. Ann § 41A. 049(2) (Michie Supp. 1997).

NO FINDING OF MALPRACTICE The plaintiff can still file a complaint if the panel finds no malpractice occurred, but will have to pay the defendant’s costs and attorney’s fees if there is an unfavorable verdict. Nev. Rev. Stat. Ann. § 41A.056 (Michie 1996).

FINDING OF MALPRACTICE The parties will be required to attend a settlement conference where the judge decides the reasonable value of the claim. Nev. Rev. Stat. Ann. § 41A.059 (Michie Supp. 1997). If the defendant rejects the settlement suggestion, and a higher amount is awarded to plaintiff, he must pay the plaintiff’s costs and attorney’s fees. Id. If the plaintiff rejects the settlement suggestion, and is awarded a smaller amount, he must pay the defendant’s costs and attorney’s fees. Id. ArbLaw Web Site

NEW HAMPSHIRE

New Hampshire law does not mandate arbitration of medical malpractice actions. ArbLaw Web Site

NEW JERSEY

New Jersey law only mandates arbitration in personal injury claims where the amount in controversy is less than $20,000. N.J. Stat. Ann. § 2A:23A-20 (West Supp. 1997).

The arbitrator’s decision is neither admissible in subsequent litigation nor binding. Assembly Ins. Comm. Statement, Senate, o. 2709-L. 1987, C.329. ArbLaw Web Site

NEW MEXICO

New Mezico mandates medical malpractice claims be reviewed by a medical commission but the findings are not binding and cannot be used in subsequent court proceedings. N.M. Stat. Ann §§ 41-5-15, 41-5-20 (Michie 1996). ArbLaw Web Site

NEW YORK

New York law does not mandate arbitration for medical malpractice actions.

However, a defendant can admit liability in exchange for an agreement to arbitrate damages. N.Y. C.P.L.R. § 3045 (McKinney 1991). Also, health organizations may contract with patients to arbitrate before treament commences as long as the patient is informed that they have a right to refuse the arbitration clause. N.Y. Pub. Health Law § 4406-a (Supp. 1997-1998). ArbLaw Web Site

NORTH CAROLINA

North Carolina law mandates settlement conferences for all cases which allow the parties to select their own mediator. N.C. Gen. Stat. § 7A-38.1 (Sup. 1997). ArbLaw Web Site

NORTH DAKOTA

North Dakota requires that plaintiff and defendant attorney’s make a good faith effort to have the parties resolve the case through arbitration before filing a complaint. N.D. Cent. Code § 32-42-03 (1996). Both attorneys also must inform the parties of every alternative dispute resolution option available or be subject to sanction. Id. ArbLaw Web Site

OHIO

Ohio law does not mandate, but allow arbitration which is non-binding and not admissable in subsequent proceedings. Ohio Rev. Code Ann. § 2711.21 (Baldwin 1994). ArbLaw Web Site

OKLAHOMA

Oklahoma law does not mandate arbitration of medical malpractice actions. ArbLaw Web Site

OREGON

Oregon law does not mandate arbitration of medical malpractice actions. ArbLaw Web Site

PENNSYLVANIA

Pennsylvania law does not mandate arbitration of medical malpractice actions. Pennsylvania has held the former statute requiring arbitration unconstitutional. Mattos v. Thompson, 491 Pa. 385 421 A. 2d 190 (1980).

A new statute allowing parties the option to have a settlement conference or mediation within 90 days of completing discovery has been suspended by the Pennsylvania Supreme Court. 40 Pa. Cons. Stat. Ann. § 1301.825-A (West Supp. 1997)., 27 Pa. Bull. 581 (Feb. 1, 1997). ArbLaw Web Site

RHODE ISLAND

Rhode Island law does not mandate arbitration in medical malpractice actions. ArbLaw Web Site

SOUTH CAROLINA

South Carolina law does not mandate review of medical malpractice actions before filing suit. ArbLaw Web Site

SOUTH DAKOTA

South Dakota does not mandate arbitration, but allows parties to voluntarily proceed their case to a medical panel to first determine liability and secondly let the parties determine the amount of damages. If the parties fail to agree on an amount in 30 days, the panel will then decide on damages. S.D Codified Laws Ann. §§ 21-25B1 to 21-25B-26 (Michie 1987 and Supp. 1997). ArbLaw Web Site

TENNESSEE

Tennessee law does not mandate arbitration of medical malpractice actions, but allows for voluntary submission to arbitration. Tenn. Code Ann. § 29-5-302 (1980). ArbLaw Web Site

TEXAS

Texas law does not mandate arbitration of medical malpractice actions.

However, each county is authorized some form of alternative dispute resolution program such as mediation, mini-trials, moderated settlement conferences, summary jury trials and arbitration which can be used prior to judicial proceedings. Tex. Civ. Prac. & Rem. Code. Ann §§ 152.001 to 152.004, 154.001 to 154.073 (West 1997).

Texas also allows serious penalties for any health care provider who requests a patient sign an arbitration agreement without the signature of the patient’s attorney. Tex. Civ. Stat. Ann. art. 4590i, § 15.01 (West Supp. 1998). ArbLaw Web Site

UTAH

Utah law mandates an informal and non-binding prelitigation review panel which may be waived by the parties or converted into binding arbitration. Utah Code Ann. §§ 78-14-8, 78-14-12, 78-14-13 and 78-14-15 (1996 Supp. 1998). Results of the panel are also not admissable in future litigation. Id. ArbLaw Web Site

Title 78, Chapter 14 of the Utah Judicial Code, the Utah Health Care Malpractice Act, can be found at ArbLaw Web Site

VERMONT

Vermont law requires that all medical malpractice actions be submitted to a review panel before trial. Either party may appeal the finding unless the parties agree on binding arbitration. T. Stat. Ann. tit. 12, § 7002 (Supp. 1997). ArbLaw Web Site

VIRGINIA

Virginia law mandates a medical malpractice review panel to decide whether the health care provider failed to comply with the standard of care and was the proximate cause of the injury. Va. Code Ann. § 8.01-581.7 (Michie Supp.1997). The panel’s findings are non-binding, are admissable in subsequent litigation and any member of the panel except the chairman may be called as a witness by either party. Va. Code Ann. § 8.01-581.8 (Michie Supp. 1997).

Parties may also agree to binding arbitration prior to treatment as long as the patient has the option to withdrawl from this agreement 60 days after termination of treatment. Va. Code Ann. § 8.01-581.12 Michie Supp. 1997). ArbLaw Web Site

WASHINGTON

Washington law mandates mediation of medical malpractice actions which tolls the statute of limitations for one year but also allows a patient to demand a jury trial. Wash. Rev. Code Ann. §§ 7.70.100, 7.70.120 (West Supp. 1997). ArbLaw Web Site

WEST VIRGINIA

West Virginia law does not mandate arbitration of medical malpractice actions. ArbLaw Web Site

WISCONSIN

Wisconsin law does not mandate arbitration but allows mediation of all medical malpractice actions in which the plaintiff can request mediation prior to filing suit or up until 15 days after filing the complaint. In either case, the statute of limitations is tolled until the mediation is complete and the findings of the panel are not admissable in subsequent litigation. Wis. Stat. Ann. §§ 655.42, 655.44, 655.445, 904.085 (West 1995 Supp. 1997). ArbLaw Web Site

WYOMING

Wymoming law does not mandate arbitration in medical malpractice actions becausee the Wyoming Supreme Court held mandatory arbitration unconstitutional as a violation of equal protection under Hoem v. State, 756 P. 2d 780 (Wyo. 1998). ArbLaw Web Site

CONDENSED MEDICAL MALPRACTICE ARBITRATION- BY STATE STATES THAT DO NOT MANDATE ARBITATION ARIZONA ARKANSAS IOWA KENTUCKY MISSISSIPPI MISSORI NEW HAMPSHIRE OKLAHOMA OREGON PENNSYLVANIA- held arbitration unconstitutional RHODE ISLAND SOUTH CAROLINA WEST VIRGINIA WYOMING- held arbitration unconstitutional STATES THAT DO NOT MANDATE BUT ALLOW SOME FORM OF ARBITRATION ALABAMA- parties can contract to have arbitration CALIFORNIA- parties can contract to have arbitration COLORADO- health care providers can place arbitration clauses in treatment contract CONNECTICUT- parties can agree to have an expert panel review the claim FLORIDA- the judge may refer the case to arbitration or either party may do so GEORGIA- the parties can agree to appoint a referee from the Superior Court ILLINOIS- allows arbitration under general state statutes KANSAS- either party or the judge may submit the case to a medical screening panel MINNESOTA- the court is permitted to establish a system of non-binding arbitration NEW YORK- the defendant can admit liablity in exchange for arbitration of damages OHIO- allows non-binding arbitration that is not admissable in subsequent proceedings SOUTH DAKOTA- allows parties to voluntarily proceed to a review panel TENNESSEE- allows for voluntary arbitration TEXAS- each county is authorized some form of alternative dispute resolution WISCONSI N- allows mediation of all claims STATES THAT REQUIRE SOME FORM OF ARBITRATION ALASKA- three-member panel mandated if parties don’t agree to arbitration DELAWARE- review panel DISTRICT OF COLUMBIA- all civil cases are eligible for arbitration HAWAII- three-step process consisting of an expert panel, arbitration and a trial IDAHO- all claims must go to an informal and non-binding hearing panel INDIANA- any claim over $15,000 must go to a review panel LOUISIANA- all claims must be reviewed by a medical review panel MAINE- all actions must be reviewed by a pre-litigation screening panel MICHIGAN- all actions must be reviewed by a mediation panel MONTANA- all claims not under an arbitration agreement must go to a panel NEBRASKA- all claims must go before a medical panel NEVADA- all claims must be reviewe by a screening panel NEW JERSEY- mandates arbitration in PI cases where there is over $15,000 in question NEW MEXICO- claims must go before a non-binding medical commission NORTH CAROLINA- mandates settlement conferences NORTH DAKOTA- mandates good faith effort at arbitration by both attorneys UTAH- mandates a non-binding review panel which may be waived or made binding VERMONT- mandates all claims go to a review panel but the decision may be appealed VIRGINIA- mandates all claims be reviewed by a prelitigation panel WASHINGTON- mandates all claims go to mediation before trial