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Kaiser Malpractice Arbitration Lawyer

Kaiser Permanente health plan members are subject to a contractual requirement to arbitrate their cases, rather than sue in court. Some Kaiser health plan members are able to opt out of this arbitration requirement, due to defective member agreements which Kaiser Permanente used in the past. Non-members can sometimes end up receiving care at Kaiser facilities, and they are also not required to arbitrate.  Depending on the jurisdiction, the odds of winning may be significantly higher in an arbitration, though, than they would be with a jury, so long as the Kaiser Permanente case arbitrator is carefully selected.

The other 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 Permanente. Kaiser cases were always heard by a three–arbitrator panel in the past, but the great majority of claimants now opt 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.

Other advantages of the Kaiser system include the ease of initiating the procedure, the simplified hearing procedures, and the predictability of having a firm hearing date.  With a lawsuit, there is a filing fee of about $500, and the suit must be delivered to all parties by a licensed process server.  To start a Kaiser case, a letter demanding arbitration is all that is needed.  The arbitrator selection process, though, can be protracted and difficult.  The rules call for use of a list of names from the Kaiser panel list, with each side engaging in a “strike and rand” procedure, handling by the office of the independent administrator for Kaiser.

Often both sides in a Kaiser case will stipulate to a particular arbitrator, someone from the Kaiser list or not.  In arbitrator selection, everything is at stake.  The wrong arbitrator can negate everything else you do.  There is a widely held perception that Kaiser will refuse to agree to anyone who rules against them very often, and the arbitrators are very well paid, so there is a lot of potential bias in play.  Even when an arbitrator is chosen at random by the independent administrator, either side can further challenge that selection, after the required disclosures.  You will need someone with considerable experience and expertise in Kaiser cases to be sure that a fair minded arbitrator will hear your case.  That well-experienced lawyer will also have to be willing to spend the time necessary to get it right.

Avoiding a Jury Trial

Another advantage of the Kaiser arbitration system is the avoidance of a jury.  Lawyers for injured parties almost always want a jury trial in most cases, but the situation is different in many medical malpractice cases.  California jury pools usually have plenty of people who have very negative feelings about doctors being sued, and the jury trial system can be very cumbersome.  Kaiser arbitration hearings have most of the the same evidentiary and procedural rules as a jury trial, but are conducted while sitting around a table.  Jury trials are subject to last-minute postponements due to court congestion and competing criminal cases, things that are not issues in arbitration.

Kaiser cases also tend to have a better chance at settling.  Doctors’ malpractice insurance policies typically have a “consent clause,” by which the company cannot settle a case, no matter how strong they think it is, without the doctor’s approval.  Kaiser cases do not have this issue, as Kaiser is “self-insured.”  Many times, doctors who are sued have strong feelings that override what should be a rational decision to settle, thus forcing the victim into what could be a risky jury trial.

Another advantage of a Kaiser case is that there is one entity making the decision about settlement.  The majority of cases with merit settle, but when there are multiple responsible defendants, such as multiple doctors, or a doctor and a hospital employee, such as a nurse, the competing view of who bears more of the blame can block a settlement.  This is not an issue with Kaiser, where there is only one place from which all of the settlement funds will be coming.

Callaway & Wolf is uniquely experienced in arbitration involving Kaiser Permanente throughout Northern California. Contact us today by filling out a contact form or calling 415-541-0300.

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