Schlachman, Belsky, Weiner & Davey, P.A.

Baltimore Law Blog

Baltimore area residents understand that one of their most important rights is to have a trial by jury. While this is an important Constitutional right in criminal cases, it can be vital in civil cases as well, as individuals may request that a jury hear their case and determine fault when personal injury occurs.

Because of this, many entities may try to avoid jury trials, for fear of what will happen once the jury hears evidence and makes a determination. One popular way of getting around a jury is to try to compel arbitration, which is a process of resolving a dispute outside the traditional legal system. Arbitration can be unpopular with plaintiffs because a third person gets to decide the dispute, which may be binding and have little, if any, rights to appeal.

Courts have varied in their enforcement of arbitration clauses. Recently, for example, a court threw out an agreement signed by a patient with a surgeon which required the patient to go to arbitration in the event of a surgical error. The court concluded the agreement violated public policy, and therefore the plaintiff, who suffered complications after a hernia surgery, could not be compelled to go to arbitration.

The agreement also tried to limit the damages available to the plaintiff, something that is frequently an issue in medical malpractice cases. Even in the court system, some states limit the amount of damages available to a plaintiff in a medical malpractice case, although the limits may pertain to particular types of damages.

Ultimately, individuals may be confused when presented with the potential for arbitration and limitations on damage awards. Accordingly, it is best to work with a qualified attorney to determine how to handle these issues, and how to be compensated for the injury they sustained at the hands of a physician.

Source: Orlando Advocate, "Justices reject med mal agreement in patient's death," Jun. 24, 2013

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