Recently in Medical Malpractice Category

August 4, 2014

Recent Case Involving Amputated Penis Resembles Kentucky Case From 2011

Before undergoing any sort of medical procedure, patients are typically supposed to provide what is known as "informed consent." Informed consent means that all patients should understand and agree to the potential consequences of their care. While Kentucky recognizes exceptions to the rule, such as in certain emergencies, a physician who performs a procedure without the patient's informed consent may be liable for medical battery.

surgical-instruments-1183621-m.jpgRecently, an informed consent case arose in the news regarding an amputated penis. Although the case was in Alabama rather than Kentucky, it raised parallels with a case in Kentucky that was decided in 2011. In the current case, an Alabama man had a medical procedure for a circumcision at Princeton Baptist Medical Center and later learned that surgeons had amputated his penis. The patient, Johnny Lee Banks, claims that he never gave his informed consent to a complete or partial amputation procedure. Banks and his wife are now suing the Medical Center and the two doctors who performed the amputation, seeking damages for pain and suffering, medical bills, and loss of consortium, among other things. Meanwhile, the defendants have filed a motion to dismiss the case, stating that the allegations were false and that neither doctor performed a circumcision or removed any tissue from Banks' penis.

The case is very similar to one in Kentucky that was decided a few years ago. Informed consent under Kentucky law mirrors the requirements of other states. Back in 2007, a Kentucky man was undergoing a circumcision to treat inflammation when the doctor performing the procedure found a potentially deadly cancer on his penis. The doctor removed less than an inch of the penis, and after a pathologist confirmed the cancer diagnosis, a second doctor removed the rest of the penis. The doctor claimed the man had already provided permission to take any treatment action, and that there was no other reasonable option available to prevent the cancer from spreading other than removing the penis. However, the patient sued the doctors, claiming that they had amputated his penis without his informed consent and without allowing him to seek a second option. In 2011, the jury ended up siding with the doctors.

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July 31, 2014

Federal Court in Indiana Permits Inmate's Medical Claim to Move Forward

Often, an injured party must first file a claim with a state agency before being allowed to pursue the claim in court. This is known as "exhausting administrative remedies." Once that agency has reached a determination, and the injured party has had the opportunity to appeal, the injured party may decide whether to accept the agency's ruling or file a lawsuit in court. Sometimes, though, it is not always clear whether an injured party must wait for the agency action before pursuing the claim. Such was the case with Valance v. Fries.

old-melbourne-goal-1443855-m.jpgValance, a diabetic, was admitted to jail in Allen County, Indiana, as a pre-trial detainee in January 2012. At some point later, he developed sores on his feet due to the jail-issued footwear he had received. Valance claimed that the shoes were too small for him, and that the jail staff should have provided him with properly fitting footwear. He was referred to a podiatrist, who treated his sores with iodine.

However, the sores failed to heal, and by April 2014, the affected area was red and badly swollen. The swelling began in Valance's toe but later spread to the rest of his foot. His toe turned black. Valance was finally taken to a hospital, where his toe and part of his foot were amputated. After Valance was discharged from the hospital, he returned to jail, but he had to go to the emergency room after a follow-up appointment revealed inflammation and one of his other toes turning black. Valance was sent back to jail after the visit, with emergency room staffers telling jail medical staff that if the infection spread up the foot, or if the toe began to rot off, Valance must return to the emergency room. Three days later, this exact scenario occurred. Valance claimed that he alerted jail medical staff, but they refused to send him to the emergency room, instead placing him on sick call for the day. Valance eventually had to have his leg amputated below the right knee. He claimed that, had the jail medical staff acted sooner, this outcome could have been avoided.

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May 22, 2014

Doctor Not Liable for Medical Battery in Kentucky

Screen Shot 2014-05-21 at 3.25.43 PM.pngIn a recent case, a Kentucky estate administrator appealed a jury verdict finding that the defendant was not liable for medical malpractice and medical battery. The case arose when a woman came to a medical center complaining of pains in her jaw, chest and arm. A cardiologist put her on Plavix and did a cardiac catheterization. He found blockages in her arteries.

The cardiologist consulted with the defendant, also a cardiac doctor, to determine if she would be a good candidate for coronary artery bypass grafting. The defendant talked to her about different medical options such as CABG surgery and medical management. The patient decided to undergo CABG surgery. She signed a consent form and her Plavix was discontinued. She was taken to surgery and her anesthesiologist decided it would be better to insert a catheter into her right internal jugular vein. This procedure didn't work and while he was trying he accidentally punctured her superior vena cava, located behind her heart.

No one knew she had been punctured. Her blood pressure suddenly dropped during surgery, causing the defendant to dissect her pericardium to look at her heart. He couldn't figure out why there was blood. He finished the procedure. Before he closed her up, he nicked her pleura (the membrane around the lungs) to take out fluid. He saw a lot of blood and figured out where it was coming from. He asked for assistance and repaired it. At first the plaintiff seemed to be recovering. But later she suffered setbacks that resulted in serious respiratory problems. She died in 2002, 16 months post-surgery. Before her death, her attorney sued the doctor and anesthesiologist for medical negligence and also sued their employers for vicarious liability. Later the administrator of her estate added a party and claimed the defendant who had performed the surgery had committed medical battery, among other things. The court granted summary judgment in favor of the defendant for the medical battery claim. The medical negligence trial commenced.

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February 28, 2014

District Court in Eastern Kentucky Dismisses Case By Prisoner in Noble v. Three Forks Regional Jail Authority

Recently, in Noble v. Three Forks Regional Jail Authority, a Kentucky inmate sued the prison staff for, among other things, medical malpractice and intentional infliction of emotional distress.

breakout-740275-m.jpgArlie Noble was convicted in 2011 of possessing and distributing child pornography. Noble was sentenced and sent to the Three Forks Regional Jail until his release the following year. Noble allegedly suffered from diabetes and Crohn's disease, which required extensive treatment.

During his incarceration, Noble claimed that his rights were repeatedly violated, in that the staff gave him his diabetes medication in a manner contrary to his doctor's advice; and fed him doughnuts, honey buns, and other foods high in sugar that worsened his condition. As a result, Noble claimed to suffer from glaucoma, internal organ damage, and dysfunctional sugar levels. In claiming medical malpractice and intentional infliction of emotional distress, Noble cited state law. He sought past and future medical expenses, past and future expenses arising from emotional distress, and punitive damages. The Three Forks Regional Jail Authority filed a motion for summary judgment, arguing among other things, that Noble's state law claims were barred by sovereign immunity and otherwise failed as a matter of law.

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February 21, 2014

Indiana Court of Appeals Denies Injured Party the Right to Appeal Judgment in Durall v. Weinberger

The Court of Appeals of Indiana recently denied an injured party the opportunity to appeal a judgment against him in a medical malpractice case, Durall v. Weinberger.

doctor-patient-relationship-673854-m.jpgBeginning in 2001, Robert Durall sought treatment from Dr. Weinberger of the Merrillville Center for Advanced Surgery, LLC for sinus problems. He underwent several procedures on the advice of Dr. Weinberger, which did not correct his problem and which, Durrall later believed, may have been unnecessary. At some point, Weinberger fled the country as his practice collapsed. Durall then filed a proposed complaint with the Indiana Department of Insurance for medical malpractice against Dr. Weinberger, the Merrillville Center, and the Nose and Sinus Center, LLC. The Department's medical malpractice review panel concluded that the proposed defendants failed to meet the proper standard of care and there was a question of fact as to whether their actions may have harmed Durall.

Durall then filed a complaint in state court against Dr. Weinberger and the two corporations, claiming medical malpractice. The defendants filed a motion for summary judgment, asking the court to (1) limit the negligence claims solely to Dr. Weinberger; (2) bar Durall from recovering emotional damages caused by Dr. Weinberger's fleeing the country; and (3) dismiss Durall's claims as untimely. Finally a hearing was held in November 2012, and the court permitted Durall's claims to move forward, but limited his negligence claims to Dr. Weinberger and barred him from recovering emotional damages. Durall filed a motion to reconsider, and initially, in March 2013, the trial court issued an order certifying its November 2012 order for a discretionary interlocutory appeal. However, in April 2013, the trial court issued a stipulated order denying Durall's motion to reconsider and denying Durall the opportunity to file a discretionary interlocutory appeal. Durall then filed a request with the Court of Appeals to accept jurisdication of the discretionary interlocutory appeal.

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October 2, 2013

University of Kentucky Tries to Dismiss Medical Malpractice Suit By Man Who Claims He Was Misdiagnosed With HIV Eight Years Ago

A Kentucky man has filed a lawsuit against the University of Kentucky Medical Center, claiming that the medical staff misdiagnosed him with HIV back in 2004. The University of Kentucky has requested that the Fayetteville Circuit Court dismiss the case.

hospital-1031747-m.jpgIn 2004, Bobby Russell went to the University of Kentucky emergency room with symptoms including a sore throat, fever, and open sores and wounds. After undergoing testing, Russell was diagnosed with HIV and started on an antiretroviral medication that seemed to suppress the illness. The only problem was that in 2012, Russell underwent more testing at Bluegrass Care Clinic, an infectious disease and HIV/AIDS clinic that is affiliated with the University of Kentucky's medical school. There, he learned that he did not have HIV.

Russell argues that none of the University of Kentucky Medical Center's staff ordered the full spectrum test for HIV, and thus did not take reasonable care. Meanwhile, the University of Kentucky's spokesmen argue that proper testing was conducted back in 2004, and that using proper testing techniques, Russell was properly diagnosed with the HIV virus. The University of Kentucky Medical Center took every precaution to ensure that Russell's illness did not progress. The University of Kentucky also asked for the court to dismiss the Medical Center and Bluegrass Care Clinic from the case because the Kentucky Supreme Court had established that the university was entitled to sovereign or government immunity from medical malpractice claims.

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August 22, 2013

University of Kentucky May Be Part of Woeful Trend of Failing to Hold Doctors Accountable

USA Today investigation found a disturbing lack of accountability for doctors nationwide, and Kentucky is likely no exception. The investigation found that state medical boards allow doctors to keep practicing medicine even after findings of serious misconduct. From 2001 to 2011, as many as 6,000 doctors had clinical privileges restricted or were barred from practicing in certain hospitals, but retained unblemished licenses. Of the 800 doctors with the most malpractice actions, fewer than one in five faced license suspension or restriction.

operation-1389104-m.jpgThe University of Kentucky Chandler Medical Center may be among those who should take a closer look. One recent article noted that although the University of Kentucky ranks high on the list of U.S. News and World Report, it has fared badly on other lists related to patient care. Consumer Reports gave Chandler Medical Center just a 47 out of 100 for patient safety, as well as low marks for surgical complications. Likewise, the Leapfrog Group, a hospital safety group, gave Chandler Medical Center a "C" compared to the higher grades it gave other area hospitals, like St. Joseph East.

One reason for Chandler Medical Center's failings is its policy of nondisclosure. For instance, it recently filed a lawsuit against a medical reporter who submitted an open records request. If no one on the outside knows how serious its problems are, no one can hold it sufficiently accountable. The situation is such that one family was advised to get treatment at the University of Michigan, due to its policy of full disclosure and thus its superior care. Chandler Medical Center's lack of disclosure may be traced to decisions by the hospital's board of trustees, rather than federal privacy laws or other claims.

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April 20, 2013

$90 Million Nursing Home Neglect Judgment Being Challenged

In 2010, a man filed a nursing home neglect lawsuit against a West Virginia nursing home following the death of his mother in 2009. The woman stayed at the facility for 19 days, during which time she allegedly fell several times, was not given enough food or water, and lost 15 pounds. She died 18 days later in Hospice. Based on the information presented during trial, the jury awarded the woman's estate $91.5 million.

Attorneys for the nursing home asked to have the amount reduced based on a state law that caps non-economic medical malpractice awards at $500,000, but the victim's attorney argued that nursing homes were not covered by the award cap law. The judge ultimately decided the medical malpractice cap did apply to a small portion of the award and reduced it to $90.5 million. After the verdict and award reduction, defense attorneys still requested a new trial, arguing that the company's finances were grossly misrepresented during the trial, making it look like its income was much greater than it really is. But the circuit judge denied their request for a new trial, and the case is now headed to the West Virginia Supreme Court.

The defense is hoping to convince the high court that the nursing home is covered by the Medical Professional Liability Act (MPLA), which was enacted in West Virginia in 1986 and amended in 2002 in response to a lack of malpractice coverage available to medical professionals in the state. This law limits the amount a victim can be awarded for non-economic damages in a medical malpractice case. Ever since MPLA was enacted there has much debate on whether or not nursing homes are covered since they are not necessarily medical professionals. The State of West Virginia is in the process of passing a new amendment that specifically includes nursing homes under the MPLA, which proponents of the bill say is what was intended when the original bill was passed over 20 years ago.

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February 20, 2013

What the Emergency Medical Treatment and Active Labor Act Means to Kentucky Residents

Because of the slow economy, many Kentuckians have lost their jobs and the health insurance that came with their employment. Their unemployment has also left them unable to purchase their own health insurance, which leaves them uncovered. So what happens if they have a medical emergency and have to go to the hospital?

Thanks to the federal government, in many emergency situations hospitals are not allowed to refuse treatment because of the patient's inability to pay. The Emergency Medical Treatment and Active Labor Act (EMTALA) was enacted in 1986, and has been revised throughout the years. The basic premise is that if someone has a medical emergency and that their health is rapidly declining or their life is at stake, the medical facility they go to has to treat them, even if they cannot pay. This act also covers women who are in active labor. The treating hospital decides what constitutes a medical emergency, and some hospitals may attempt to find some reason to avoid treating someone who is not able to pay so they are not stuck with unpaid debt. Other hospitals will treat even if they think it is not an emergency so that they do not have to worry about negative consequences if the patient's condition worsens because of non-treatment, such as a medical malpractice or wrongful death lawsuit.

In a recent case in Louisiana, a man went to one hospital after suffering a heart attack. He had a procedure to unblock one of his arteries, but it was decided that he needed a heart transplant. While waiting for the transplant, a device was to be implanted at a different hospital to help keep him alive. He was transported to the other hospital for the surgery, then was told they wouldn't perform the surgery because he didn't have a way to pay for it. In the interim, the patient's health declined, and he eventually passed away. His family members have filed a wrongful death suit against the hospital claiming they should have done the procedure regardless of his ability to pay because the victim's life depended on it.

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February 16, 2013

Health Inspections Find Numerous Issues at Most Massachusetts Compounding Facilities

1285558_injection_needle_macro_2.jpgIn 2012, hundreds of people became ill and 46 people died as a result of tainted medication. The problem was traced back to a compounding facility in Massachusetts that has since closed. Steroid injections given to people with back pain had been contaminated and caused a meningitis outbreak that affected patients in 20 states. Shortly after the source of the outbreak was discovered, the Massachusetts Department of Health started doing surprise health inspections at the other compounding facilities across the state. Their findings, released in February 2013, were surprising and a little scary.

Inspectors visited 37 of these specialty pharmacies and discovered deficiencies at all but four of them. That means there were issues at 33 of the companies. Of this number, 11 had violations so serious that at least parts of their operations were temporarily shut down. One company voluntarily surrendered its license, and the other 21 had more minor violations and were allowed to stay open. Officials were quick to point out that this is not a one-state issue; Massachusetts just happens to be the one state that did these inspections. Some states don't even require their compounding facilities to comply with the guidelines checked by the inspectors in Massachusetts.

While none of the problems discovered were as bad as those found at the facility that caused the outbreak, it is still good that the issues were found and will be corrected. The state has dedicated funds to pay for more routine inspections of compounding pharmacies, and hopefully other states will follow in its footsteps.

Many victims of the meningitis outbreak have filed product liability lawsuits against the now-defunct compounding pharmacy, and the families of some of the victims who died have filed wrongful death claims. But because the company is no longer in business, it is unclear how much anyone would be awarded. Some of the victims may have also filed medical malpractice claims against the medical personnel that administered the tainted injections, but it remains to be seen if any of them will be held accountable.

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November 7, 2012

Indiana Residents Still at Risk for Meningitis Infection from Tainted Steroid Shots

On Monday, November 5, 2012, the Indiana State Department of Health announced that 51 Indiana residents have been infected with fungal meningitis and the death toll rose to four victims. Nationwide, the total number of people sickened stands at 409, and 30 people have died.

How did this epidemic start? Investigators are not sure how the tainting occurred, but they do know that the drugs were manufactured at a drug company in Massachusetts called the New England Compounding Center. The contaminated drugs are steroids that are injected in patients to help relieve pain. The majority of the people who have fallen ill were suffering from chronic back pain and the drug was injected into their spine to provide some relief. An additional 10 people who had the injections in other places, such as hips or elbows have contracted peripheral joint infections, but there have been no deaths reported.

In an attempt to figure out how this happened, Congress has subpoenaed one of the owners of the drug company. Attorneys representing the drug company are saying there are too many differing state and federal laws regarding pharmacies and drug manufacturers and that their client has done nothing wrong. In the meantime, the number of lawsuits continues to grow.

In Indiana, at least one wrongful death lawsuit has been filed by the family of a man who died after receiving an injection that was contaminated by a fungus. They hope that the lawsuit will answer the question of how these dangerous drugs were able to be sold and administered to patients, including their lost loved one. They are seeking compensatory damages for lost income, loss of companionship, and medical and burial expenses. The lawsuit also request punitive damages, which are commonly included in medical malpractice and wrongful death cases. This type of damages is meant to cost the company or individual at fault enough additional expense to deter them from acting in a similar manner in the future. In this case, the drug company, if it is even allowed to reopen for business, will hopefully determine what caused the contamination and take whatever measures are necessary to keep this type of outbreak from occurring again.

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September 7, 2012

Woman Files Medical Malpractice Lawsuit against Hospital That Didn't Treat Her

In an unusual twist in the world of medical malpractice law, a woman from Kansas has filed a lawsuit against a hospital in Pittsburgh, Pennsylvania that never provided her medical treatment, and that she has most likely never even seen. The woman was admitted to the Hays Medical Center in Kansas in 2010 for treatment at the heart center.

She needed a pacemaker. She encountered numerous medical personnel during her admission, never suspecting one might give her an incurable disease.
In August 2012, the patient received notice from the Kansas hospital that one of their former employees had hepatitis C, that she may have been infected during her pacemaker procedure, and that she should be tested. The test came back positive. She and her husband have now filed a medical malpractice lawsuit against the University of Pittsburgh Medical Center (UPMC) and two staffing companies. How they came to sue a hospital in Pittsburgh over something that happened in Kansas is something one might expect to see on TV crime show.

Before coming to Kansas, a medical technician who worked at UPMC allegedly was stealing narcotics for his own personal use. He was caught with a syringe in his pants and was terminated in 2008. The hospital did not alert the police because they did not think there was enough evidence against him to press charges. The man went on to work at hospitals in several other states before finally being arrested in July, 2012 in New Hampshire. Along the way, he contracted hepatitis C and is accused of infecting 31 people at a New Hampshire hospital with the disease while attempting to steal fentanyl. After his arrest, every patient he might have come into contact with was notified that they may be infected.

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August 8, 2012

Victim Awarded $5.5 Million in Medical Malpractice Lawsuit over Mesh Implant

Advances in medical technology are amazing and can provide great benefits to patients. Unfortunately, sometimes the products created to help people can end up causing more harm than good. In this type of situation, victims can seek compensation not only from the doctors or hospitals involved in the procedure, but also the company that created and marketed the product.

One medical product that is under intense scrutiny right now is a mesh that is implanted in various parts of the abdominal area to treat bulging organs, called pelvic organ prolapse (POP), or incontinence due to weakened tissues around certain organs. In 2011, the FDA updated its report on the use of vaginal mesh implants. The update states that serious complications are more frequent than initially thought and that it is unclear whether surgery that includes the mesh implant is any more effective than the traditional method. Between 2008 and 2010, the FDA received 2,874 reports regarding medical issues associated with the vaginal mesh implants including "mesh erosion through the vagina (also called exposure, extrusion or protrusion), pain, infection, bleeding,...dyspareunia,...organ perforation, urinary problems... recurrent prolapse, neuro-muscular problems, vaginal scarring/shrinkage, and emotional problems." In January, 2012, the FDA told numerous manufacturers of this product to perform a three-year study to confirm it is safe and effective.

Hundreds of victims have filed medical malpractice lawsuits claiming these implants are causing additional medical issues. One case has already gone to trial and been decided by a jury. The victim had claimed that her vaginal mesh implant that had been manufactured by C.R. Bard Inc. caused chronic pain and incontinence and that she had endured nine surgeries to try to fix the problems caused by the implant. The lawsuit, which was filed against both the manufacturer and the doctor who performed the surgery, alleged that the company had not thoroughly tested the product before selling it, despite the fact that the FDA had approved it. The jury determined that the manufacturer was 60 percent responsible and the doctor was 40 percent responsible. The victim and her husband were awarded $5.5 million for pain and suffering, medical expenses, and loss of consortium.

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June 11, 2012

Dentist Allegedly Drops Tool down Patient's Throat, Kentucky Medical Malpractice Lawsuit Filed

1237145_dentiststs_tools.jpgFor those who already dread a trip to the dentist, here is one more reason to avoid making the appointment. According to a woman from Jessamine County, her dentist dropped a tool in her mouth and she reflexively swallowed it.

According to a medical malpractice lawsuit filed in Fayette Circuit Court in Kentucky, the woman was having part of her dentures cleaned when the tool allegedly slipped out of the dentist's hand. The dentist encouraged her to attempt to regurgitate it, which she was unable to do. The patient claims the dentist told her to have a chiropractor take and x-ray, so she did and brought them back to him. The dentist then told her to eat a lot of fiber and allow the tool, which the lawsuit describes as a screwdriver, to pass naturally.

About 30 days later, the tool had still not appeared and she was experiencing some pain, so the woman went to Saint Joseph's hospital and ended up having to have an appendectomy to have it removed. The lawsuit filed on her behalf claims the dentist was negligent because he did not have the tool secured in any way and he allowed it to drop down her throat. The dentist's response to the lawsuit says the tool was not a screwdriver, that he did not lose control during the procedure, and that he encouraged her to go to the University of Kentucky emergency room, but the patient refused.

The lawsuit, which the dentist would obviously like to have dismissed, is asking for damages for several reasons. Compensation for pain and suffering is commonly requested in medical malpractice lawsuits. The patient in this case had to endure abdominal pain, surgery, and a recovery that all would not have occurred if the tool had not been dropped into her during the procedure. Her suffering may also include mental distress from worrying about the tool being lodged in her and what damage it might be causing. She has also requested money to cover the medical bills that resulted from having the x-rays done and her surgery and stay in the hospital. The lawsuit also claims that her ability to work and make money was also affected by the dentist's negligence. Even though she was 71 years old when the suit was filed, it is entirely possible that she was still working at the time of the incident because she needed the income.

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May 29, 2012

Questions and Answers about Arbitration Agreements for Kentucky Residents

1221952_to_sign_a_contract_3.jpgIn a recent case in Florida, a man was infected with flesh-eating bacteria through an infected needle at his doctor's office. Not only did the doctor provide the needle that infected the patient, but he also failed to notify the patient about the infection and did not instruct him to go to the hospital. When the patient tried to file a medical malpractice suit against the doctor, he discovered he had signed an arbitration agreement that prohibited him from filing a lawsuit.

Even though this case was in Florida, this situation could affect Kentucky residents as well. The following are some questions and answers about these arbitration agreements.

Q: What is an arbitration?

A: An arbitration is a hearing used to solve a dispute between two individuals. Rather than being argued in a courtroom before a judge and jury, both sides present their case to a panel of supposedly unbiased arbitrators. Oftentimes the panel is made up of experts selected by both parties.

Q: What is a medical arbitration agreement?

A: A medical arbitration agreement is a document signed by an individual that requires them to handle any dispute with the doctor or medical facility through arbitration rather than filing a lawsuit in court. In the case above, when the patient went to his doctor for a steroid shot, he signed an arbitration agreement saying he could not sue the doctor in court for medical malpractice. It also stated that the patient could not be awarded more than $250,000 in damages if the arbitrators ruled in his favor. This type of limitation may not be binding because it may conflict with state laws regarding caps on damages.

Q: What if I sign a medical arbitration agreement without reading it?

A: While this situation is evaluated on a case-by-case basis, it appears that most courts are upholding the agreements even if the patient states he didn't read it before signing. In the case above, a judge ruled that the agreement is binding even though the patient said he didn't read it because the agreement was clearly written and stated in large letters at the top that one should not sign it without reading it first.

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