AAA Breaks Its Promise Not to Hear Pre-Dispute Arbitrations in Health Care Cases

This story is a MUST-SEE.  It was originally reported on the Consumer Law & Policy Blog.  Check it out at http://pubcit.typepad.com/clpblog/2007/02/aaa_breaks_its_.html

Here’s an excerpt:

A Case Study of How AAA’s Broken Promise Can Harm an Injured Person

Putting aside the broader policy issue of whether it matters if AAA is honest when it makes apparently sweeping and solemn promises to the public, to the media, and to legislatures, does it really matter as a practical matter if AAA breaks its promises? Well, ask a man named Bennie W. Holland. His story is described in an Associated Press story dated September 5, 2006 titled “Man promises to refile lawsuit over dirty surgical instruments.” The story tells how in November 2004, Bennie W. Holland had back surgery at Duke Hospital. After his surgery, Holland learned that he was among a large number of other persons whose “operations may have been performed with instruments mistakenly washed in hydraulic fluid. . . .” Somehow, Duke Hospital personnel apparently got confused, and mixed hydraulic fluid used to operate the hospital’s elevators with the system used to wash surgical instruments prior to their use in surgery. In Mr. Holland’s case, this contamination resulted in grave complications from the surgery, including a severe infection, and the temporary loss of kidney and bowel functions. Mr. Holland recently underwent a second surgery on a hip that was affected by Duke’s failure to properly clean its surgical instruments.

Unfortunately for Mr. Holland, though, before his surgery he had signed a pre-dispute arbitration clause designating the AAA to administer any potential claims arising out of Duke’s provision of health care services pursuant to the Health Care Claim Settlement Procedures.
When Mr. Holland went to court to bring claims against Duke for medical malpractice arising out of Duke’s use of contaminated instruments during his surgery, however, Duke rushed to enforce what the AAA’s Mr. Zotto whimsically called Duke’s “revocable” pre-dispute binding arbitration clause. This is precisely the type of “life or death” case that AAA’s Senior Vice President Meade spoke of when he implemented the policy that the AAA would no longer administer health care disputes.

It’s easy to see why Duke Hospital wants to force such a case into arbitration. Experienced lawyers know that, in any given type of case, most AAA arbitrators tend to be lawyers whose principal job is defending companies that might be defendants in similar cases. In other words, if Mr. Holland and his lawyer go forward with arbitration before the AAA, they are likely to receive a list of seven names from the AAA of possible arbitrators, and all or very nearly all of the names on that list will probably be lawyers who work at law firms where they and their partners represent other health care providers in defending against medical malpractice cases. There’s every possibility that an HMO or nursing home defense lawyer is going to view Duke Hospital’s negligence in a case like this less seriously than might a jury of Mr. Holland’s peers.

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~ by ebragg on September 29, 2008.