I-Team: Patients sign away right to jury trial in malpractice cases

TAMPA - When you visit the doctor, you are asked to sign a stack of forms. But you may be signing away an important right without realizing it. Critics say binding arbitration agreements, a growing practice in the medical industry, are hurting some patients.

Jessica Sapp, 21, suffered a serious knee injury two years ago. After an initial surgery, she developed a serious infection that limited her mobility for two years. A surgeon noted in one report that the infection appeared to be tracking from sutures placed in her knee in a previous procedure.

“He removed an actual wire, like a wad of stitches and wire from my knee,” Sapp said.

Sapp believes the infection was caused by the sutures left in her knee by the previous surgeon.

“I was livid.  Absolutely livid.  I tried to sue him.  I went to two lawyers, and they told me I didn’t have a claim,” Sapp said.

J. Steele Olmstead is one of the lawyers who said he couldn’t help Jessica. He says it was because she had signed a document that more and more doctors are requiring from their patients called a binding arbitration agreement.

“I cannot do anything with an arbitration agreement.  It ties my hands.  I cannot get that young lady and her very, very badly injured knee in front of a jury,” Olmstead said.

Arbitration means a patient gives up the right to a jury trial. If there is a malpractice claim, the case is decided by arbitrators chosen by both sides. Many doctors use arbitration, and most of them wouldn’t agree to speak with ABC Action News about the practice.

Women’s Care Florida did, however. They manage a group of local OB/GYN clinics. In addition to spelling out the meaning of the arbitration agreement on the form, they require new patients to watch a video explaining arbitration. The video claims arbitration is better for patients.

“Through arbitration, physicians and patients both benefit, because they are able to more promptly resolve malpractice claims and with less expense to all parties,” the video states.

Malpractice lawyers, on the other hand, claim that unlike Women’s Care Florida, many doctors don’t explain to patients they’re signing away their right to a jury trial. Olmstead says arbitrators typically side with doctors, not patients.

“Is arbitration fair? Absolutely not. It’s a one-sided agreement,” Olmstead said.

USF professor and health law expert Dr. Jay Wolfson says he’s seen no evidence arbitration favors one side over the other. He says in some cases, it can be fairer than a jury trial, in which jurors may rule based on their emotions.

“It tends to be more factual, legal, as opposed to emotional,” Wolfson said.

The medical community says arbitration is necessary because frivolous medical malpractice lawsuits are running out of control, sometimes taking five or more years to reach an outcome.

“Doctors want patients to be compensated if they deserve to be compensated. What they don’t want is the process year in, year out with all of the stress that they have on their practice and personal savings,” said Dr. Bob Yelverton at Women’s Care Florida.

Jessica Sapp says she no longer wants to take her doctor to court. But she wishes someone had fully explained to her that she had already given up the right.

“I don’t want to have that right taken from me. That is my right. I have the right to sue if something goes wrong,” Sapp said.

The important thing for patients is to know what you are signing. Read the documents at your doctor’s office carefully. If you’re not comfortable signing an arbitration agreement, there are many doctors who don’t require them.