Health Care Arbitration Agreements

1. Health Care Arbitration Agreements Will they work in Indiana? Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN

2. Health Care Arbitration Agreements • Arbitration puts you in control of the process • Limiting discovery (and discovery disputes) • Selection of the fact-finder • Relative confidentiality • Limited review • Speed • Cost control Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN

3. Health Care Arbitration Agreements • Federal Arbitration Act (9 U.S.C. §§ 1-16) vs. Indiana’s Uniform Arbitration Act (I.C. § 34-57-2-1 through 22) • FAA trumps everything • Indiana allows depositions only to preserve testimony • Both statutes allow you to “draft around” limitations Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN

4. Enforceability Concerns • Typical Challenges to Enforceability • Mental capacity • Legal Authority • Execution • Unconscionability Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN

5. Drafting Considerations • Scope of the Agreement • Just medical malpractice? • Fee disputes? • Who determines arbitrability? Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN

6. Drafting Considerations • Voluntary vs. Mandatory Arbitration • Voluntary as inhibiting enforcement • Opt-out provisions • Mutual vs. one-sided Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN

7. Drafting Considerations • Sample “Opt-Out” Provision: “The Patient’s agreement to arbitrate may be cancelled by written notice delivered to the Administrator within thirty (30) days of the date of this Agreement. If the alleged acts underlying a Dispute occur before the cancellation date, this Agreement shall be binding with respect to those alleged acts. If not cancelled, this Agreement shall be binding on the Patient for this and all of the Patient’s other admissions to this Facility without any need for further renewal.” Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN

8. Avoiding Waiver • Acting in a manner inconsistent with a desire for arbitration can waive the right to demand arbitration • Initiating or participating in litigation • Filing crossclaims and/or counterclaims • Engaging in discovery Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN

9. Avoiding Waiver • Making the demand for arbitration too late can result in waiver of the right to demand arbitration • Asserting vs. compelling arbitration • Arbitration cannot be a “second bite at the apple” • Manipulation of the judicial system is not permitted Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN

10. Arbitration and the Medical Malpractice Act • Sanford v. Castleton Health Care Ctr., L.L.C., 813 N.E.2d 411, (Ind.Ct.App. 2004) • Nursing home was not a qualified healthcare provider • Dicta suggests that invoking arbitration agreement for a claim of medical malpractice may waive the benefits of the Medical Malpractice Act, e.g., limitation on liability and screening by a medical review panel. Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN

11. Arbitration and the Medical Malpractice Act • There is (or ought to be) a way to get the benefits of arbitration while retaining the benefits of the Medical Malpractice Act • Arbitration is a “settlement” not a judgment • Agreement should clearly limit liability to provider’s maximum amount, but preserve patient’s right to proceed against the Fund • Department of Insurance interests only implicated if the arbitration award is the limit of liability Robert F. Parker Burke Costanza & Cuppy, LLP ] Merrillville, IN

12. Arbitration and the Medical Malpractice Act • The Professional Liability Carrier: A Problem? • Arbitration is in the carrier’s interests, too. But sometimes they don’t see it that way. • Policy gives insurer the control of the defense • Check with the carrier first. Don’t wait until there is a claim to find yourself in a situation that might give rise to coverage issues. Robert F. Parker Burke Costanza & Cuppy, LLP ] Merrillville, IN

13. Health Care Arbitration Agreements Will they work in Indiana? • There’s no reason they shouldn’t work • There are many reasons they should Robert F. Parker Burke Costanza & Cuppy, LLP Merrillville, IN