Arbitration Update

Elliott Williams, Esq.
Legal Counsel for UMIA

The UMIA Arbitration Program continues to be vibrant and successful. More than half of our insured physicians who have the opportunity to discuss arbitration with patients in advance of treatment are now using arbitration agreements. Among the surgical specialties, 80% of our insureds are recommending arbitration to their patients. We have also found that very few patients choose not to sign the agreements especially when benefits are explained to them and someone is available to answer questions.

We have also been pleased with the results of arbitration hearings. The proceedings are much less stressful, less expensive, and take far less time than jury trials. Having the ability to choose intelligent, well-educated and experienced arbitrators has also enhanced our ability to predict the results of arbitrage hearings. We have carefully selected cases to take to final arbitration hearings and, as a consequence, our success rate has exceeded 90%.

The 2009 Utah Legislature reenacted the Medical Malpractice Arbitration Statute for another ten years. No changes in the Statute were made. There were changes made in 2004 and there have been Utah Appellate Court decisions in recent years that significantly affect the use of arbitration agreements. It is imperative to know the following:

1. Arbitration agreements signed prior to May 3, 2004 are unenforceable.
2. All patients must sign an arbitration agreement that complies with amendments to the statute made in 2004.
3. A written explanation of arbitration must be given to patients with the agreement and they must be encouraged to read the explanation.
4. Obstetrical patients need to sign a new arbitration agreement with each pregnancy.

In 2004, the UMIA prepared a two-page arbitration agreement that complies with the statutory requirements. We also prepared a revised, written explanation of arbitration, as well as a pamphlet that contains the required disclosures and describes the benefits of arbitration. Please make sure you are using the correct forms. These forms can be obtains online at umia.com or by clicking the links below:

• Written Explanation of Arbitration for Patients (PDF):
  This handout is presented to patients for compliance with the requirement they receive a written description of arbitration.
• Arbitration Agreement (PDF):
  The current approved arbitration agreement that is to be used for all new agreements and to replace all older versions. Older versions must be replaced with this document at renewal.

The Utah Supreme Court also ruled recently that arbitration agreements are not enforceable in wrongful death cases. The court held that a Utah constitutional provision grants special status to wrongful death claims that cannot be subject to any limitations including use of binding arbitration. That decision should not discourage physicians from using arbitration agreements that are binding and enforceable in all other injury claims.

The UMIA continues to offer a 5% premium discount to physicians who encourage all of their patients to sign arbitration agreements. Physicians cannot require a patient to sign arbitration agreements in order to receive medical care and they should never do so. By encouraging patients to read the written explanation of arbitration, and by having someone available to answer questions patients may have, nearly all patients are perfectly willing to choose this alternative for resolution of malpractice claims. Taking the time to make sure patients understand the benefits of arbitration will ensure the continued success of our program.