b. Arbitration. Several states have authorized binding agreements to arbitrate
future malpractice disputes. When there is a valid agreement to arbitrate, the dispute is
submitted to an arbitrator who decides whether there should be any payment, and if so,
how much. Many agreements provide for an arbitration panel rather than a single
arbitrator. Generally, courts can set aside arbitration decisions only for limited reasons,
such as failure to follow proper procedures or bias of the arbitrator. A valid arbitrator
decision has the same effect as a court judgment and can be enforced using the same
mechanisms. Some health care providers and patients favor arbitration because it is
faster and far less costly than litigation. It is a less formal process that avoids adverse
publicity and the complex rules of litigation that promote an adversarial relationship.
Others dislike arbitration, preferring disputes decided by a jury using procedures more
familiar to attorneys. Some providers believe they have a better chance by a jury of
avoiding any payment, while some patients believe that if they win, they will be awarded
larger payment. In some states, like California, arbitration agreements have been
enforced in many cases. In some states, the status of arbitration is unclear.
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