NJ Appellate Court Upholds Arbitration Remedy for Patient/Doctor Disputes

Share | In Moore v. Woman to Woman Obstetrics & Gynecology, a New Jersey appellate court ruled that arbitration is a valid forum for resolution of disputes between doctors and their patients. The court found that some patient-physician agreements to arbitrate are enforceable, but enforceability will be determined based on whether certain substantive and procedural requirements have been met.

The relevant facts of the case are as follows:  The Plaintiffs Monica and Kevin Moore are the parents of Koral Moore, who has Down Syndrome. Due to Monica's age, her pregnancy was considered high risk. Her doctor, defendant Lisa Vernon, M.D., practicing with defendant Woman to Woman Obstetrics & Gynecology, L.L.C., referred Monica to defendants Carlos Fernandez, M.D., and Premier Perinatal, L.L.C. (Premier). 

During Monica's first appointment with Dr. Fernandez at Premier, an ultrasound was to be administered due to her high-risk pregnancy.  The receptionist gave Monica a clipboard with forms she was to complete, including a medical questionnaire, and an arbitration agreement.   Monica completed the forms, but maintained that no one called the arbitration agreement to her attention.   Monica was not given a copy of the agreement after she signed it or when she left the office.

The arbitration agreement consisted of four pages, and was captioned in bold and capital letters as follows:  "ARBITRATION AGREEMENT FOR CLAIMS ARISING OUT OF OR RELATED TO MEDICAL CARE AND TREATMENT."

Immediately above the signature line the following notice was provided:

NOTICE: BY SIGNING THIS CONTRACT, YOU ARE AGREEING TO HAVE ANY ISSUE OF ALLEGED MEDICAL NEGLIGENCE OR BREACH OF CONTRACT BETWEEN YOU AND YOUR MEDICAL CARE PROVIDER DECIDED BY A BINDING ARBITRATION PROCESS IN WHICH BOTH PARTIES ARE GIVING UP THEIR RIGHT TO A TRIAL BY JURY, OR A TRIAL BY JUDGE.

At the bottom of the same page beneath the signature lines that warning is repeated as follows:

BY ENTERING INTO THIS AGREEMENT, THE PATIENT AND THE MEDICAL CARE PROVIDERS ARE WAIVING ALL RIGHTS TO A JURY TRIAL IN A COURT OF COMPETENT JURISDICTION AND ARE AGREEING TO RESOLVE BY BINDING ARBITRATION ALL DISPUTES ARISING OUT OF OR RELATED TO [A] PATIENT'S DIAGNOSIS, MEDICAL CARE AND TREATMENT.

Monica and her husband filed a complaint on behalf of themselves and their child Koral against Dr. Fernandez and Premier alleging medical malpractice and seeking damages, including special damages for extraordinary medical expenses that they will incur during the child's infancy and by Koral thereafter.   The trial court granted summary judgment in the defendants favor by compelling arbitration, and the plaintiffs appealed. 

On appeal, the Moore court found that an expectant mother could bind her unborn child with an agreement to arbitrate the wrongful life claim.   In contrast, the appeals court held that the father, who was not present in the doctor's office and did not sign the agreement, was not bound to arbitrate and could therefore instead sue the physician in court.  In reversing the trial court's decision, the appeals court held it was improper for the trial court to grant summary judgment to the defendants based on the totality of the circumstances, which included:

• No one in the doctor's office alerted Monica to the fact that a contract waiving her rights and the rights of her husband and child was among the forms she was asked to complete during her first visit to the practice.  
• Although the arbitration agreement informed Monica of her right to seek the advice of counsel and a right to withdraw from the agreement within fifteen days,  the medical staff did not give her a copy of the agreement, which was essential to the exercise of those contractual rights. 
• While arbitration has been approved by the New Jersey Legislature and, for that reason, cannot be deemed inconsistent with public policy, the waivers exacted in this agreement are overreaching in one aspect. This agreement to arbitrate includes waivers of the rights of persons who are not parties to the agreement — the patient's spouse and unborn child.

In health care cases, enforcement of agreements to arbitrate depends on the circumstances surrounding execution of the contract.  In particular, the question is whether the patient was given adequate notice of the existence of the agreement and also provided a copy of the agreement after signing.