How can cell phone companies and car rental places force someone to arbitrate? Don’t we have a right to a jury trial in America?
In the end, most standard arbitration agreements are enforceable when you sign them, have notice of the terms, and the terms are the same for both parties.
Mark also asked what individual patients could do. Well, if the dispute arises out of one patient’s specific problems with the doctor, then the arbitration clause will likely be enforced. But, where a large class of patients has the same dispute with the same doctor, then those patients might consider a class action lawsuit. Several courts have held that an arbitration clause that bans class action lawsuits is substantively unfair and oppressive. Some courts have held the opposite.
Last, Mark asked whether arbitration will protect patients’ rights. This is a very complex question that I do not have time to answer today. But, I will say this: most arbitrators are highly respected lawyers and retired judges who are well trained, and uphold their duty to apply the law objectively. So long as you have a decent attorney and a decent arbitrator, you have a very good chance at receiving the award you would if you tried your case in court. The major downside is the confidentiality clauses that many agreements contain. This confidentiality might stop you from telling your story to the world as a warning to others.
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