Kaiser members are subject to a requirement to arbitrate their cases, rather than sue in court. Some Kaiser members are able to opt out of this arbitration requirement, due to defective member agreements which Kaiser used in the past. (We have a Kaiser arbitration blog posting on this subject.) Depending on the jurisdiction, the odds of winning may be significantly higher in an arbitration than they would be with a jury, so long as the Kaiser case arbitrator is carefully selected. The flip side of this equation is the perception that private arbitrators tend to give lower awards in cases where they find for the person suing, due to their less emotional approach to the decision, and their hopes for future work from Kaiser.

Kaiser cases were always heard by a three–arbitrator panel in the past, but the great majority of claimants have opted for a single arbitrator since the rules were changed to permit it.

Despite going to arbitration rather than jury trials, Kaiser cases have virtually the same pre–trial procedural rules that apply to court cases. Although a look at the Kaiser arbitration administrator website may give the impression that you can fill out the forms and handle a case on your own, this is not feasible for the vast majority of people. We also have a blog posting on self representation in Kaiser cases.

After the typical work to confirm that the case has merit, (see our Medical Malpractice page) the first order of business after initiating a case in the Kaiser arbitration system is selecting an arbitrator. Here is a task where your attorney’s knowledge and experience are key. Kaiser case arbitrators are typically drawn from a list maintained by the Kaiser Independent Administrator. Many of the names on the list are of defense attorneys who would be very poor choices for your case. If the arbitrator selection process is mishandled, it may not matter how well the case is handled thereafter. Depending on the circumstances, it may also be possible to obtain Kaiser's agreement to use an arbitrator who is not on the Administrator's list.

Since Kaiser is self–insured, there is no insurance carrier involved. In non–Kaiser cases, a insurance carrier typically must obtain a doctor’s consent to settle. Thus, in some cases, the carrier wishes to settle the claim, but cannot, due to the doctor’s refusal. Kaiser cases do not seem to have this issue, presumably since Kaiser doctors are employees, rather than insurance customers who can switch carriers if too much pressure is applied.

If you or someone you know has been injured by Kaiser malpractice, call 415–541–0300 for a free consultation, or follow this link to speak to a Kaiser malpractice lawyer in San Francisco at Callaway & Wolf.