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LEGAL
EASE
If you’re worried
about patient claims,
you need to
read this article
By George F. “Rick” Evans, Evans, Rowe & Holbrook
The Texas Supreme Court may have
given you a new opportunity to protect
yourself against all sorts of patient
claims - especially malpractice. In
short, you may be able to avoid the
courthouse altogether and go to ar-
bitration instead. A number of ar-
ticles were written about this
decision in the past months, but I
don’t see that anybody gave doctors some concrete advice. But I
sure will. Keep on reading.
Let’s start with what arbitration is. It’s been around for decades
and I guarantee you’ve signed plenty of contracts that require ar-
bitration if you wind up crosswise with the other side. Arbitration
is a mechanism by which parties resolve their disputes outside the
court system. It’s typically much faster than the judicial process
and usually is cheaper, too. A neutral arbitrator (or a panel of ar-
bitrators) is selected to serve as judge and jury. A hearing is held
but it isn’t as formal as a trial and there is no jury. The “no jury”
part is important because you don’t have to worry about the risk
of getting a poorly educated juror influenced by emotions rather
than fact. The hearing is almost always quicker than a trial. And
there typically isn’t nearly as much discovery (depositions and
stuff ) done beforehand. The arbitrator renders a decision which is
pretty much final because there is no arbitration court of appeals.
There are downsides to arbitration. I could list them but isn’t it
sufficient to say that the plaintiff ’s bar fought tooth and nail a doc- bitration law took precedence over Texas law. And, because the
tor’s right to demand arbitration? What does that say? Yes, there
are downsides but, on balance, most doctors would prefer arbitra-
tion of a jury trial, particularly if you’re in a pro-plaintiff venue.
Now, to the case at hand. It begins with Elisa Zapata who
reached that point in her life that she needed a little more help
28 San Antonio Medicine • February 2016
than in her younger years. As such, she became a patient of the
Fredericksburg Care Company a few miles north of us. Part of the
admission process required she sign the usual terms of admission.
But, this time there was something different. The papers contained
a clause that required arbitration of any disputes between her and
the nursing home.
Of course, it’s no surprise to you to read that she died and her
heirs claimed it was only because of negligence. Hence, the lawsuit.
The nursing home demanded the case go to arbitration instead of
the courthouse. The courthouse disagreed and kept the case. The
nursing home persisted and the whole mess wound up before the
Texas Supreme Court.
Now, here’s the rub. Texas state law allows physician/patient ar-
bitration agreements in theory but not in practicality. To have one
that satisfies our state law, it has to be in 10-point bold-faced type
telling the patient that he’s losing a lot of important rights. Most
of all, the agreement must be signed by the patient’s attorney. Not
just the patient. Now how many people are going to do that? In
this case, the nursing home’s agreement fell short of the require-
ments and, by Texas law, was invalid.
Yet, the Supreme Court yanked the case from the judicial system
and sent it over to arbitration. Why? Well, it’s a boring legal ex-
planation but, in short, it’s because the nursing home received
Medicare payments and was therefore involved in interstate com-
merce. Because it was involved in interstate commerce, federal ar-
nursing home’s arbitration clause satisfied federal requirements
(which are pretty sparse compared to Texas law), the Court held
the agreement valid.
Okay, what’s this mean to you? Should you get your attorney to
draft an arbitration clause that your patients need to sign? Should
it be part of all new patient intake forms? If you receive federal