Victim of Medical Malpractice at Kaiser?

Kaiser Malpractice Lawyer in San Diego

San Diego Kaiser Malpractice Arbitration Attorney Fighting for Justice

Medical malpractice can happen anywhere, anytime. It is the third leading cause of death in the United States. When we are sick or injured, we don’t expect to suffer further injuries due to the medical care we receive, but the sad truth is this happens on a daily basis.

In Southern California, the healthcare system known as “Kaiser” is made up of three entities: Kaiser Foundation Hospital, Southern California Permanente Medical Group (SCPMG), and Kaiser Foundation Health Plan.

For its business model, Kaiser uses gatekeepers to control costs. These gatekeepers can be nurse practitioners or primary care physicians, who control referrals for testing, radiology imaging, and specialists. In the outpatient setting, the majority of Vaage Law’s Kaiser medical malpractice cases involve failure to diagnose, failure to order proper tests/scans, or failure to refer to a specialist. In the Kaiser hospital system, medical malpractice generally stems from:

• Emergency physician negligence (failure to admit a patient)
• Surgical negligence
• Hospitalist / attending / ICU physician negligence, and
• Nursing negligence.

What is a Kaiser Arbitration Agreement?

Most medical malpractice cases are resolved through a lawsuit in court. However, as part of the enrollment in the Kaiser healthcare system, each patient signs an agreement requiring members to forfeit their rights to a jury trial for medical malpractice, and instead, submit to the arbitration process. Rather than presenting the claim in the courtroom in front of a judge and jury, the parties present their case before either a panel of three arbitrators or one neutral arbitrator.

The Kaiser Arbitration System is managed by the Office of the Independent Administrator. One interesting web page at the OIA is the “Disclosure Table About Arbitration Awards Received in Past Five Years – Sortable.” You can see the amount the parties are claiming, the monetary awards or settlement (if any), names of attorneys, and neutral arbitrators. This information is mandated by California Code of Civil Procedure section 1281.96.

How is the Kaiser Arbitration Process Started?

If you believe you or a loved one were injured due to medical malpractice committed by Kaiser, you may initiate an arbitration proceeding. This is done by submitting a “Demand for Arbitration” and a $150 fee to the relevant Kaiser legal department – this depends on the location of the Kaiser operation. In Southern California, the Demand is mailed to Kaiser Foundation Health Plan, Inc., Legal Department, 393 East Walnut Street, Pasadena, CA 91188.

The Demand for Arbitration is similar to a Complaint in a conventional lawsuit, as it sets forth the alleged violations and proposes an appropriate legal remedy. There is no specific form or special filing paperwork associated with a Kaiser Demand for Arbitration. Typically, mailing a letter will suffice. However, the Demand for Arbitration must usually require vital information such as:

• The nature of the violation and claim being brought
• The amount of monetary compensation being demanded
• Contact information of the injured party or their attorney
• The names of all the Kaiser entities that are believed to be at fault

Even at this early stage, formulating a Demand for Arbitration requires precision and accuracy in the statements. It is highly recommended that you reach out to a Kaiser malpractice arbitration attorney for assistance in getting the claim started.

How Many Arbitrators Are There in Kaiser Medical Malpractice Arbitration Proceedings?

Generally, for disputes involving $200,0000 or less, the arbitration proceeding is heard by a single arbitrator. For cases involving more than $200,000 the arbitration may be heard by two-party arbitrators and one neutral arbitrator. The claimant/patient chooses a party arbitrator and Kaiser selects it party arbitrator. The cost of the party arbitrator is borne by each party and the cost of the neutral is shared equally by the parties.

Claimants who are entitled to select a Party Arbitrator under these Rules may agree to waive this right by signing a Waiver of Party Arbitration form, which will make the arbitration before a single neutral arbitrator. In that case, Kaiser will pay for the cost of the neutral if the claimant also agrees to waive any objection arising out of payment by Kaiser of the neutral arbitrator’s fees.

We at Vaage Law have found that generally party arbitrators side with their party, leaving the neutral arbitrator to make the final decision. In most cases, it makes sense to waive party arbitration and move forward before a neutral arbitrator paid by Kaiser.

You need an attorney who knows the rank and strike system, who the best neutral arbitrators are, and how to push your case through the Kaiser arbitration system.

How is the Neutral Arbitrator Selected?

Once a Kaiser medical malpractice claim is initiated, the OIA will send a list of neutral arbitrators to the parties. These arbitrators are randomly selected by the OIA, and the parties are expected to come to select a preferred arbitrator. The parties also have the option of selecting a neutral arbitrator who is not on the list.

If the parties cannot or will not agree on the arbitrator, the parties are permitted to remove four names from a list and rank the remaining arbitrators in order of preference. The OIA will then assign an arbitrator based on those rankings.

The selection of the neutral arbitrator is a vital step. You need an attorney who knows the rank and strike system, who the best neutral arbitrators are, and how to push your case through the Kaiser arbitration system. Although supposedly neutral, some arbitrators either favor Kaiser or historically tend to award less in damages.

What Should You Know about Kaiser’s Medical Records?

Kaiser healthcare providers rely on electronic medical records (“EMR”) within its HealthConnect system. The problem we see with EMRs is threefold:

First, EMRs were originally designed for billing purposes. That explains why some of the dropdown choices for a specific diagnosis or therapy don’t make a lot of sense. It’s like those t-shirts you get on fan days at baseball games – the same one-size-fits-all shirt is handed out to an 80-lb teenager and a 250-lb adult. You make it work, but it doesn’t really fit. That’s how EMRs work. While information is at a clinician’s fingertips, it’s not always accurately explaining what’s going on with the patient.

Second, as a shortcut, doctors and nurses often cut and paste from past notes. It’s a lot faster than typing up a new note. This creates another problem that we call “anchoring bias.” Once a bad or incorrect diagnosis is entered into the EMR, it’s perpetuated throughout each subsequent record. One doctor may have mistakenly noted that you have a heart condition when you don’t. Now every subsequent doctor you see will think you have a heart condition, which affects their decision-making about your care. This is anchoring bias.

Third, what you receive as a “copy” of your electronic medical record is not the way a healthcare provider sees your record on a computer monitor. All of the text may be there along with lab results, radiology reports, etc., but you’re not seeing the interface as a healthcare provider would when he or she is making a critical decision about your care. How many drop-downs or screens does an emergency department doctor have to click through to obtain your referral information?

Electronic medical records can be a fast and efficient way for a healthcare provider to learn about you. However, it can also be an Achilles’ heel. It’s important that your attorney be very familiar with EMRs, and if it’s a Kaiser negligence case, then familiarity with Kaiser’s EMRs is critical.