Big Healthcare Attempts to Deny Victims of Malpractice the Right to a Jury Trial

 Posted on January 19, 2021 in Medical Malpractice

Private equity firms are expanding into healthcare at an alarming rate. In the past 10 years, they have purchased more than 4,000 Women’s Health Clinics, and current estimates have the industry owning more than 10% of the United States’ dermatology market. In the past 5 years alone, private equity has invested more than $10 billion in medical practices. And, as they expand into healthcare, they’ve brought their ruthless business tactics with them.

The private equity business model is well-known: buy loads of fledgling businesses for cheap, group them together, frantically cut costs, and sell high to a bigger investment firm. Applying that model to healthcare not only results in substandard care, but it also results in a deprivation of constitutional rights.

I am primarily talking about mandatory arbitration clauses, an industrywide favorite amongst the private equity firms. Private equity attempts to use these clauses to cut business costs by drastically decreasing injured plaintiffs’ ability to receive just compensation from a jury caused by medical negligence.

The American Board of Trial Advocates, a national association of trial lawyers who represent both plaintiffs and defendants, firmly opposes the use of these clauses. Membership in ABOTA is by invitation only. Members must have a certain number of jury trials, and must be recognized locally and nationally as being ethical and professional in dealing with the judiciary, opposing counsel, and their clients. Nationally, ABOTA has approximately 7,600 lawyers who are equally balanced between plaintiff and defense. ABOTA has chapters in all 50 states and the District of Columbia.

ABOTA’s core mission is to preserve and promote the right to trial by jury in civil cases. And, for years, ABOTA has recognized the unfairness of mandatory arbitration clauses: mandatory arbitration clauses “have locked Americans out of the courthouse…and forced them to pursue their claims through a secretive arbitration process devoid of oversight,” often by using fine print buried in boilerplate contracts. Critically, ABOTA holds that position as a bipartisan organization, evenly divided between the plaintiff and defense bars. Its core mission is simply to preserve and promote the right to trial by jury in civil cases. And Tomasik Kotin Kasserman stands with ABOTA against mandatory arbitration.

Assuming arguendo that a patient even sees and reads a mandatory arbitration clause, the clause gives the patient a false choice between receiving medical care and retaining his or her 7th Amendment right to a jury trial. The patient either agrees to a private proceeding, led by an arbitrator that likely has a history with the defendant, and that is not governed by procedure or precedent, or the patient does not receive medical care. What’s more, arbitration awards are notoriously limited, depriving the patient of his or her just compensation when malpractice occurs. If the patient wishes to retain his or her constitutional rights and, in turn, ensure that he or she will be adequately compensated in the event of malpractice, the patient must look elsewhere. To be sure, those options will be limited as private equity’s presence in healthcare expands.

Tim Tomasik, Tomasik Kotin Kasserman co-found and partner, is the immediate past President of the Illinois Chapter of ABOTA. Tomasik Kotin Kasserman stands with ABOTA in its firm opposition to the use of mandatory arbitration clauses. The attorneys at TKK have extensive experience fighting mandatory arbitration to ensure that our clients retain their constitutional right to a jury trial. Call our personal injury lawyers today at 312-605-8800 to arrange a free consultation.