Kaiser Permanente Arbitration: How It Works

Medical malpractice claims must be arbitrated through the Kaiser system. So, how does the system work?

Our legal expert, J. Niley Dorit, a California attorney, explains what you need to know. He says Kaiser's arbitration process is very similar to filing a traditional medical malpractice lawsuit in many ways:

The client attends the arbitration and everything that occurs between the time of presenting the claim and the time of the arbitration – and that's almost identical to what would happen if there was a court case. There’s testimony taken from the patient or their survivors, from doctors and nurses and there's a general exchange of information.

There’s a judge assigned to the case to hear any disputes until the time of the arbitration. So, it’s virtually identical to everything that happens in a regular court case with the exception that there is no jury and that the case will be heard in a conference room in a private office. However, the landmark events that occur are virtually identical to what occurs if the case was going through the court system.

Is arbitration better or worse for injured patients?

We asked Dorit whether he thinks the Kaiser arbitration system is better or worse for injured patients than going through the traditional court system. Here's what he told us:

First of all, let me say that I don’t think any patient should be forced into an arbitration. I think it’s improper to force them to give up their right to have a trial by jury. It’s an important right and I think that a lot of these cases ought to, and need to, be heard by members of the community. That’s very, very important.

Having said that, Kaiser Permanente medical and hospital malpractice lawsuits are considered complex cases. They’re complex because they involve very technical issues and the legal theories and the law concerning medical issues is a complex area of law. Because it’s so complex, when the case is decided by either a retired judge or a senior attorney who’s been designated as the arbitrator, I think there’s a tendency to get much more predictable results by way of arbitration than there is with a jury trial.

In some ways, I think the arbitration system in some of the more complex medical cases is preferable to having a case presented to a jury because you have a senior attorney or a judge who is already knowledgeable about the basic legal principles and may be more inclined to listen to and learn about some of the basic medical principles. Jurors don't volunteer their time, so they're already being imposed upon. To ask them to undertake a study of complex medical principles, I think, is really starting to ask them too much.

Dorit told us that he thinks judges and senior lawyers who act as arbitrators are much more receptive to listening to the complexities and the details of the case. So in that regard, he believes that you have an audience who is more inclined to listen and to get involved.