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  • Taking Chances2:24

            The suit involved a patient who was admitted to a non-profit hospital for a gall bladder operation.  The patient, an obese elderly woman, had an extensive 30-year medical history of degenerative arthritis, joint disease, lower back problems, and knee and foot problems.  Following her gall bladder operation, the patient was given dalmane, a prescription sleeping pill.  However, the registered nurse on duty failed to raise the siderails on the patient's bed and the patient fell out of bed during her sleep. 

            Two months later, while the patient was at the hospital's surgical clinic, she complained of pain in her right upper leg.  One week later, while the patient was undergoing physical therapy at the hospital, she complained of a knotting in the back of her knees, back ache and tightness in the buttocks.  Two months after later she complained of numbness in her right thigh.  Further x-rays taken nearly two and one-half years after the patient's fall from bed, revealed that the patient was suffering from a degenerative disc disease.  The patient sought no further medical treatment. 

            The patient filed a lawsuit in state court against both the registered nurse and the hospital alleging that the nurse had been negligent in failing to raise the siderails on the bed, and that she suffered damages as a result.  The parties then engaged in pre-trial discovery and the patient's deposition was taken.  However, before the parties had invested a substantial amount of time, energy and financial resources to the pre-trial discovery process, the parties agreed to submit the case to binding arbitration as an alternative to continuing with discovery and trial preparation.  Both sides saw benefits to this arrangement. 

            For the patient, submitting the case to arbitration would have the benefit of speeding up the resolution process and reducing the mental strain that the litigation process often imposes on parties.  Also, the hospital's liability in any event was limited to the state's charitable immunity cap of $20,000.  However, as part of the parties' agreement to arbitrate, the hospital agreed to double it's potential liability to $40,000 in exchange for the patient's agreement to dismiss the nurse as a defendant in the case.  Because the parties agreed that the patient could submit her nurse expert's opinion letter as expert testimony the patient was spared the further expense of paying expert witnesses to prepare for, and to appear and testify at court.  The hospital decided to present an expert witness to testify at the arbitration hearing.

            Arbitration benefitted the hospital as well.  It simplified the decision-making process, and avoided the risk of a jury returning a large monetary verdict against the nurse.

            The hospital also benefitted from a quicker resolution of the claim and from substantially reduced legal costs.  Arbitration also offered greater shelter from adverse publicity that is often associated with any accusation of negligence.  Furthermore, the hospital could be assured that the decisions regarding liability and damages in this case would be resolved by an experienced and well-educated arbitrator, rather than a random pool of citizens.   This was especially true in this case, where there was credible evidence of negligence, yet very weak evidence linking that negligence to any harm allegedly suffered by the patient.

            Since such agreements to arbitrate in these circumstances are voluntary, the parties, as in this case, have the freedom to set specific rules as to what evidence the arbitrator would be allowed to hear.  This, plus the absence of competing with other cases for court time for a trial, allows for a dramatically shortened "trial" before the arbitrator.  If the parties agree to binding arbitration, the arbitrator's decision would not be reviewable by a court unless the decision was arbitrary and capricious, or otherwise tainted with fraud.

            After the arbitration hearing was held, the arbitrator issued a detailed decision.  He concluded that the nurse had been negligent in failing to raise the siderails.  He also concluded, however, that the patient had failed to prove that she had suffered any damage as a result of her fall.  Thus, the hospital did not have to pay the patient any money.

            The acceptance of arbitration as an alternative means of resolving legal disputes has grown dramatically in recent years.  Now, not only labor or commercial disputes are found in arbitration hearings.  This recent case shows how arbitration can be a wise choice in medical malpractice cases as well.  Although the issues involved in this recent case were relatively simple compared to many other medical malpractice cases, the risks and benefits to defendants in more substantial case might be the same.  As the costs, both in terms of time and money, of sufficiently preparing a case for trial continue to increase, more medical malpractice defendants will view arbitration as a sound alternative to proceeding to trial.

Use of Arbitration in the Settlement of Malpractice Suits

by Attorney Frank E. Reardon

September 1991