Kaiser Arbitration Agreement Overview in California

Errors and omissions by doctors, nurses, or hospitals can easily lead to misdiagnoses, delays in diagnosis, or entirely new injuries not related to the underlying reason the patient sought medical assistance. In turn, these can lead to prolonged illness, permanent disability, or even death.

Kaiser Permanente is one of the oldest health maintenance organizations (HMOs) in the United States. Its health insurance plan covers millions of people in both Southern and Northern California. However, despite its size and organization, Kaiser's healthcare providers can still commit medical malpractice.

Kaiser often requires patients to agree to arbitration in medical malpractice cases. This means that when people sign up for Kaiser, they usually have to agree to a clause in their paperwork that says they will not take their case to court or have a jury trial if there's a problem with their medical care. Instead, they must settle the issue with a third-party arbitrator, a neutral person who makes the final decision.

If you or a loved one needs help understanding your Kaiser Permanente arbitration agreement, a medical malpractice lawyer from Hodes Milman can support you every step of the way. With over three decades of experience, we will ensure you are not denied fair and accurate compensation for your injuries. Reach out to our team online or by calling (949) 640-8222 today.

What Is Arbitration?

In most medical malpractice cases, the victim can file a lawsuit in court and seek compensation for the injuries they have suffered. However, when there is a valid arbitration agreement between the healthcare provider and the victim, the dispute may be forced into arbitration instead.

In arbitration, one or more third parties preside over the legal proceedings, ending in a hearing where evidence is presented, witnesses are called, testimony is taken, and arguments are exchanged.

An arbitration hearing is often similar to a private trial. While it's not held in a courtroom, many key aspects of a traditional trial are still part of the process, like questioning witnesses. The main difference is that these steps happen in a more informal setting, like a conference room, rather than in front of a judge and jury.

In arbitration proceedings, the party bringing the legal claim is known as the "claimant." Meanwhile, the party responding to and defending against this claim is known as the "respondent."

The person who hears the case is the "arbitrator," and they're expected to be fair and unbiased. A sole neutral arbitrator acts like both a judge and a jury. They are responsible for hearing the case fairly, deciding which evidence can be used, and ultimately determining the outcome based on the facts presented.

However, in some cases, a group of arbitrators called a panel is chosen to hear the case. This panel may include "party arbitrators," who are picked by one side of the dispute. Unlike neutral arbitrators, who are agreed upon by both sides to be fair, party arbitrators are chosen by just one side and may not be completely neutral. Depending on the rules of the arbitration, party arbitrators may support the side that selected them.

What Is the Purpose of Arbitration?

One of the main reasons arbitration is used in many situations is that it offers privacy and confidentiality. Unlike court cases, arbitration hearings are not part of a public court docket, meaning there are no public records of the proceedings. This allows the parties involved to keep the details of their case out of the public eye, which can be especially important in sensitive matters.

Additionally, most arbitration decisions, known as "awards," are also confidential. The specific details of the outcome are not generally shared with the public. While there are a few exceptions, such as when the law requires reporting to regulatory bodies like the Medical Board of California, arbitration allows for a more private resolution compared to traditional court trials.

Kaiser Permanente and California: Key Facts

Kaiser Permanente has been a cornerstone of health care in California for over 75 years. While the organization is known for its award-winning health care model, it is not immune to the pitfalls of medical malpractice. Here's a quick look at some data about Kaiser Permanente's presence and impact in California:

• Serving 12.4 million members, with over 9.4 million living in California.
• Largest private employer in California, with over 181,000 employees statewide, including 18,820 physicians.
• 130,500 union members in California alone.
• The Southern California Permanente Medical Group (SCPMG) serves 4.9 million Kaiser Permanente members in Southern California.
• The Northern California Permanente Medical Group serves more than 4.6 million members.

How To Start Arbitration With Kaiser Permanente?

To begin an arbitration case against Kaiser, you need to submit a "Demand for Arbitration" to the right Kaiser legal department. The department depends on whether the case involves Kaiser's Northern or Southern California operations.

A "Demand for Arbitration" is similar to a formal complaint in a court case. It explains the details of your claim and what you're asking for. While there isn't a special form to fill out, the Demand should include:

• The basis of the claim being brought
• The amount of damages (monetary compensation) being sought
• The contact information for the claimant or their attorney
• The names of all the Kaiser entities believed to be at fault for the claimant's injuries

Kaiser Permanente is technically made up of several distinct but interdependent legal entities. Therefore, it's important that you name the correct ones in your Demand.

For example, a case against Kaiser involving medical care provided in Southern California will generally name the Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and Southern California Permanente Medical Group in the Demand.

Once Kaiser receives your Demand, they will notify the OIA (Office of the Independent Administrator) with a "Transmission Form" and send you a copy. The OIA will then take over and manage the arbitration process.

The OIA manages and coordinates arbitrations between Kaiser and its California health plan members. Although the OIA is a neutral, independent office and not a part of Kaiser, it is paid by Kaiser to maintain the arbitration system, develop and update the rules that govern Kaiser arbitrations, and oversee all of the cases in arbitration.

To move forward, you will need to pay a $150 non-refundable filing fee to the OIA within 75 days unless you qualify for a fee waiver or have already included the payment with your Demand. If you don't pay the fee or get a waiver, the case will be considered abandoned.

After the Demand is filed, Kaiser will assign outside legal counsel to your case, and both sides can begin the discovery process (gathering evidence) just like in a regular court case.

For more details, you can visit the OIA's page on Demands for Arbitration here.

How Does the Kaiser Arbitration Process Work?

After you submit the Demand for Arbitration and the OIA receives the $150 filing fee, the next step is choosing a neutral arbitrator. The OIA will send both parties a list of twelve potential neutral arbitrators.

These names are randomly selected from an OIA list of available arbitrators in the region where the alleged malpractice occurred. For example, if your case involves medical care in Los Angeles, the list will include arbitrators from Southern California.

Choosing a neutral arbitrator from this list is not required. Both parties can agree on a neutral arbitrator and select them together, as long as the individual agrees in writing to serve.

If the parties can't agree on a neutral arbitrator, they must review the twelve names on the list and rank their preferences. Each side can remove four names from the list and rank the remaining names in order of preference. They must then return their ranked lists to the OIA by the specified deadline.

The OIA will look at the rankings and choose the most preferred arbitrator who is available and willing to take the case. If the first choice can't serve, the OIA will move to the next preferred person, and so on, until a neutral arbitrator is selected.

Once the arbitrator is appointed, they are required to hold an arbitration management conference within 60 days. During this conference, the arbitrator and both parties will set important deadlines, including the date for the mandatory settlement meeting and the arbitration hearing itself.

If the case doesn't settle, the arbitrator will conduct the "trial." The arbitration system is designed to resolve cases within 18 months of the OIA receiving the patient's demand letter, although there are some exceptions.

Going through a medical malpractice case, whether in court or arbitration, can feel overwhelming, especially if you're unfamiliar with how the process works. From filing your Demand to selecting an arbitrator, it can quickly get complicated, and even more so if you're struggling with your health.

That's why having an experienced lawyer who knows the ins and outs of Kaiser arbitration is so important. They'll make sure Kaiser doesn't back you up against a wall and that your case is handled fairly. Don't try to do this alone. Get in touch with the medical malpractice team at Hodes Milman by calling (949) 640-8222 or filling out our online form today.

How Many Arbitrators Are Typically Involved in a Kaiser Permanente Arbitration Agreement?

Generally, if the amount in controversy is $200,000 or less, the arbitration is heard and determined by a single neutral arbitrator.

If the amount in controversy is greater than $200,000, the rules state that the arbitration may be heard by a neutral arbitrator and two party arbitrators. However, the parties may decide to waive, and are usually encouraged to waive, party arbitrators. In such an event, the arbitration shall be presided over and decided by only the sole, neutral arbitrator.

What Has to Be Proven in a Kaiser Arbitration Agreement?

As with a medical malpractice claim brought before a court of law, the injured party needs to prove the following to prevail in a Kaiser Permanente arbitration agreement:

• They were owed a professional duty of care by the healthcare provider.
• There was a breach of this duty by the healthcare provider.
• That the breach of the duty of care caused injuries.
• The injuries have resulted in measurable damages.

Healthcare providers must always render care and treatment within the standard of care, meaning that they must utilize the level of skill, care, and knowledge that a reasonably careful provider would use in the same or similar circumstances.  

When a healthcare provider fails to exercise this level of reasonable care, and because of that failure, the patient is injured and suffers damages on account of that injury, it is medical malpractice.

Proving whether the standard of care was breached and whether the breach of the standard of care caused injury requires the input of witnesses and strong evidence, which a medical malpractice attorney has experience gathering and organizing.

What Compensation Can Be Recovered in Kaiser Arbitration Settlements?

The recoverable damages in a medical malpractice arbitration versus Kaiser are the same as in other forms of medical malpractice litigation. Thus, one can still recover both non-economic and economic damages.

Non-economic damages represent the value of non-quantifiable or abstract losses sustained by the injured party, such as the injured person's:

• Pain and suffering
• Loss of enjoyment of life
• Worsening of prior injuries
• Emotional anguish

Also, if your loved one passed away due to medical malpractice, you may be eligible for other non-economic damages, including loss of consortium or the loss of love, companionship, and affection in wrongful death cases.

Meanwhile, economic damages represent quantifiable losses sustained because of the injuries alleged in the case. Common forms of economic damages covered in a Kaiser arbitration agreement may include:

• Loss of past and future earnings if you were kept from working or unable to return to work
• Loss of household services
• Past and future medical expenses

In 2023, California updated its medical malpractice laws with the passage of AB 35, signed by Governor Gavin Newsom. This new law raises the cap on non-economic damages (pain and suffering) set by the Medical Injury Compensation Reform Act (MICRA).

For wrongful death cases, the cap starts at $500,000 and increases by $50,000 each year until it reaches $1 million. In non-wrongful death cases, the cap starts at $350,000 and rises by $40,000 annually, topping out at $750,000. These caps apply regardless of how many defendants are involved.

Kaiser Arbitration Statute Of Limitations

In California, the time limit to file a medical malpractice claim applies to both Kaiser and private doctors. While you can't directly sue Kaiser, the same time rules still apply. This is called the statute of limitations.

The general rule is that you must take action within three years of the date of your injury or one year of discovering said injury.

What If There's Already a Lawsuit Filed Against Kaiser in a California Superior Court?

Although one can file a lawsuit against Kaiser and attempt to seek a court trial instead of binding arbitration, Kaiser routinely seeks to have medical malpractice cases filed in Superior Court sent to arbitration.

Kaiser's attorneys may bring a Petition to Compel Arbitration in such an instance, citing how the Kaiser enrollment forms and other plan documents have arbitration clauses in them that state that, as a condition of enrollment, the injured party forfeited a right to jury trial and agreed to binding arbitration only to resolve such disputes.

Under current California Supreme Court decisions, Kaiser's arbitration clauses are considered valid and enforceable. Thus, if Kaiser's attorneys properly bring a Petition to Compel Arbitration, backed by the relevant contract, in a situation where the case was filed in court instead of having been submitted to arbitration, the Court may grant that petition and order that the dispute be decided in arbitration after all.

Can a Kaiser Arbitration Award Be Overturned or Appealed?

Generally, no. An arbitration award in a binding arbitration with Kaiser is meant to be final. Such awards are imbued with as much authority as a final judgment following a trial, and their terms can be enforced in a court of law.

Barring exceptional circumstances, such as where the arbitration award was procured by corruption or fraud, the decision of the arbitrator or arbitration panel cannot be overturned, invalidated, or reviewed by either a trial court or a court of appeal.

Even where there is evidence that the award was procured by corruption, fraud, or other undue means, you may have to go through another arbitration proceeding.

The Kaiser Arbitration Process Is Complex - Hire Hodes Milman for Assistance

Just like a medical malpractice lawsuit, Kaiser arbitrations are complex matters with many deadlines and procedures that must be heeded. If you or a loved one were harmed due to medical malpractice at Kaiser, contact us at Hodes Milman for legal representation.

We have decades of experience obtaining favorable Kaiser arbitration settlements, including:

• $17.25 Million Kaiser Stroke Arbitration Settlement: A 39-year-old patient with chronic kidney disease suffered a debilitating stroke after unnecessary surgery due to his condition. Through arbitration, we secured a settlement increase from $4 million to over $17 million to cover the lifelong care he needs.
• $250,000 Arbitration Award in Wrongful Death Suit Against Kaiser: A 65-year-old woman's death was caused by Kaiser's failure to follow up on a lost colon polyp biopsy. In arbitration, we proved that this negligence led to metastatic colon cancer.

With an experienced attorney on your side, you can ensure that your case is thoroughly prepared and presented in the strongest possible light, increasing your chances of a favorable outcome.

Call us at (949) 640-8222 or fill out our quick online form to schedule a confidential, no-obligation consultation. Get in touch with us before filing a demand letter so that we can begin preparing your case.

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