What Everybody Ought To Know About The Kaiser Permanente Arbitration Process for Medical Malpractice Claims

It is no secret that Kaiser Permanente is the largest delivery system of its kind in the United States and has more than nine million members. In California they require all members of the organization to resolve all disputes related to claims for medical malpractice through a binding arbitration system. Members of Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) either directly or through their employer sign a binding arbitration agreement.

Many victims feel that somehow the arbitration process compromises their claim or ability to be compensated for their injuries. Clients often come to me and ask me “how do I get out of that arbitration system? ” Based upon my many years of experience and many victories against Kaiser Permanente, I assure them, that arbitrating a medical malpractice case against Kaiser Permanente depending on the circumstances of their claim may be beneficial.

A Brief History of Arbitrations
Our judicial system favors arbitrations. The arbitration statutory procedures are set forth in Code of Civil Procedure §1280, et seq. and the Kaiser Permanente arbitration rules. There are many state and federal court cases upholding the validity of private arbitrations, enforcement of private arbitration agreements, and enforcement of private arbitration awards.

Once arbitrations were problematic for claimants / plaintiffs because the healthcare provider / insurer had the money, manpower and volume of cases to manipulate the arbitration system to their advantage. This was especially true for Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group). This really was a problem and the propensity to manipulate the system was discussed in the case of Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951.

In the California Supreme Court in the Engalla case found that Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group) was manipulating the arbitration system. The Court found they were manipulating the system. One method they used was delaying the selection of a neutral arbitrator, which made it difficult to get cases resolved timely. There were instances when the claimant died during the pendency of the claim because of delays.

In the face of having their entire arbitration system disbanded Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group) established the Office of the Independent Administrator (OIA). This independent law office acts as a third party overseeing the entire Kaiser Permanente arbitration system. They have established a screening process for arbitrators and require all parties to comply with the arbitration rules. I think the system is fair and equitable. However, for that to be true, you must have an attorney who is experienced with the process Kaiser Permanente arbitration process from selecting an arbitrator to presenting evidence. Frankly, it is my opinion that arbitrating a case correctly is just as demanding as going to trial.

The Skill of Your Attorney is Important
Your attorney must have the background, training and experience to understand and navigate the arbitration process. If he or she does have that experience then good results are probable. In all arbitration processes the “key” is getting a real “neutral” neutral arbitrator. In Kaiser Permanente arbitrations they pay half or all of the neutral arbitrator’s fees. The challenge is that Kaiser Permanente has hundreds of cases where a neutral arbitrator can serve. This raises the specter that a neutral arbitrator may find for Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) to “keep the cases coming.”

My experience with the neutral arbitrators that I have used has not shown that. I have had several cases in which neutrals have award 100s of thousands of dollars to more than 1 million dollars. It is my experience that there is many honest and honorable neutral arbitrators who will not be “unduly” swayed by the money issue. Based upon my experience and network of attorneys I know which neutrals are the truly neutral arbitrators. I generally do not have difficulty getting Kaiser Permanente to agree with the selection of a neutral to hear a case. As well, although both parties are entitled to party arbitrators, over the years I have moved away from using party arbitrators because I think it adds another layer of complexity to the case and places an adverse advocate in the room with the neutral.

If your attorney has the experience, knowledge and ability a claimant can get a reasonable neutral arbitrator and Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) will pay the arbitrator’s entire fees. This will save you thousands of dollars and you will get a timely fair hearing.

Arbitration v. Trial
My experience has caused me to conclude that if a claimant has a strong liability case, the claimant has a higher probability of a successful result in arbitration than before a jury. I believe this to be true because the neutral arbitrators or arbitration panels that I have used are knowledgeable professionals who understand medicine and understand the medical/legal issues and are not easily bamboozled by slick experts. Nor are they intimidated by doctors or lawyers.

With juries you are dealing with twelve lay people (in state court) whom we must educate often in complex areas of medicine. I think if they do not understand the medicine, Plaintiff loses. If they do not understand the complex and confusing jury instructions Plaintiff loses. If they do not like the Plaintiff, you will probably lose.

However, if you win the liability aspect of your medical malpractice case, with a jury, your general damages are limited to $250,000.00. So even if a jury were likely to award a larger damage award then an arbitrator, the law caps the general damages at $250,000.00. I have not personally had a situation in which we prevailed on liability in an arbitration and had the arbitrator give inadequate damages for pain and suffering. Not saying this is always true but that has been my experience.

Concluding Thoughts
There is a myriad of variables that present in all medical malpractice claims, whether against Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) or other healthcare provider. If you find yourself in the unfortunate situation of being a medical malpractice victim of Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) it is imperative that you choose a personal injury that has the skill training and experience to litigate in the arbitration venue. An attorney with experience and a good track record will give you the best possible chance of reaching your goal of successfully settling or winning your claim.

If you or someone you know has been a victim of medical negligence arising from the care and treatment provided to you by Kaiser Permanente (Kaiser Foundation Health Plan, Kaiser Foundation Hospitals, Southern California Permanente Medical Group, Northen California Permanente Group) please feel free to give me, Richard M. Katz, a call at 626-796-6333. We are found at 1122 East Green Street, Pasadena, CA. 91106.
My website is lawyer-personal-injury-law.com

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