Arbitration of Disputes: How Is It Used in Medical Malpractice?

Arbitration of disputes can be used to resolve medical malpractice issues out of court. Arbitrators decide the outcome of medical malpractice arbitration cases and are typically chosen through the agreement of both parties. In Illinois, the Health Care Arbitration Act dictates how arbitration of disputes should be used in medical malpractice. Arbitration helps resolve medical malpractice cases more quickly, but it’s not ideal for all circumstances.

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Does My Case Have to Go to Court?

Many people who know how to file a medical malpractice claim take their malpractice cases to court. However, you can use alternative dispute resolution (ADR) to resolve medical malpractice cases without going to court. ADR refers to techniques used to resolve legal disputes without involving the court. Arbitration and mediation are the most common forms of ADR used to settle medical malpractice claims.

Arbitration of Disputes: How Is It Used in Medical Malpractice?

Patients and doctors can decide to settle medical malpractice disputes through arbitration.

What Is Arbitration?

Arbitration is a legal process in which the involved parties have their case heard by an arbitrator or arbitration panel to decide the outcome outside the courts. Arbitration is less formal than court litigation. Some rules of evidence and procedure may not be observed during the arbitration. For example, arbitration often allows for hearsay or unsubstantiated information.

Nevertheless, arbitration still has rules and procedures that have to be followed. Just like court trials, arbitration involves:

  • Giving opening and closing statements
  • Presentation of witnesses and evidence
  • Representation by attorneys
  • Compliance with the statute of limitations

During an arbitration hearing, each party presents its case before an arbitrator rather than a judge or jury. The arbitrator uses the information the parties present during the hearing to decide the outcome. In Illinois, an arbitration proceeding can be conducted by one arbitrator or a panel of three arbitrators.

The Health Care Arbitration Act requires both parties in medical malpractice arbitration cases in Illinois to agree on the chosen arbitrator. In proceedings to be conducted by three arbitrators, each side should pick one arbitrator. The two arbitrators selected will then choose the third neutral arbitrator.

The decision that a medical malpractice arbitrator makes is typically legally binding for the parties involved. The grounds for appealing an arbitrator’s decision are usually very limited.

When and Why a Case Would Go to Arbitration

You may seek arbitration voluntarily if a malpractice dispute arises and you want to reach a settlement without formal court proceedings. Patients may find arbitration more appealing than a courtroom trial for several reasons. The arbitration process is typically much faster and offers more privacy than when the case is handled by a judge or jury. However, in most cases, medical malpractice cases go to arbitration instead of a court trial due to patients signing a healthcare arbitration agreement.

What Is a Healthcare Arbitration Agreement?

Healthcare arbitration agreements are written agreements between patients and healthcare providers that state that any dispute that arises will be handled through arbitration. The patients sign the agreement before a procedure or treatment. The agreement comes into effect when a dispute regarding the procedure or treatment arises afterward.

When you sign a healthcare arbitration agreement when seeking medical care from a hospital or physician, you waive your right to file a malpractice lawsuit. Instead, you will submit any claim against the medical provider to an arbitrator for determination. All the involved parties must abide by the decision of the solitary arbitrator or panel of arbitrators.


In Illinois, you can cancel a healthcare arbitration agreement within 60 days of signing it, or 60 days after your discharge from the hospital. You may also cancel within 60 days of the last date of medical treatment by the healthcare provider. Every healthcare arbitration agreement is required to notify you of this window.

Determining Validity

You can challenge the validity of a healthcare arbitration clause in court. Depending on circumstances, courts may determine that an arbitration agreement is unenforceable, even if you have signed it.

In Illinois, courts will likely find arbitration agreements that don’t comply with the rules provided in the Health Care Arbitration Act to be invalid and not enforceable. For example, medical providers cannot impose arbitration agreements as a condition for receiving healthcare services. The arbitration agreement has to indicate that clearly. The court will likely dismiss an arbitration agreement you were coerced into signing to receive treatment.

The healthcare arbitration agreement should be a separate and complete instrument, not a part of another instrument or contract. During the discharge planning process, you or members of your family, if appropriate, should receive a copy of the healthcare arbitration agreement you signed to reaffirm it. Failing to comply with this provision will void the agreement.

A healthcare arbitration agreement should be fair to you and the medical provider. A court may declare it invalid if it’s too one-sided or biased.

Should You Choose Arbitration Over a Court Trial?

Arbitration may be simpler, faster, and more private than a trial. However, it may leave you not knowing what to do if you have been misdiagnosed or are a victim of some other type of medical malpractice. That’s because arbitration may later severely limit your options for seeking the compensation to which you should be rightfully entitled. 

Therefore, it’s best to ask questions and seek as much clarification as possible when you are considering arbitration to settle a medical malpractice case or signing a healthcare arbitration agreement before a medical procedure. A medical malpractice lawyer will review your case and help you figure out whether the arbitration will lead to a more favorable outcome than taking your case to trial. If you have already signed a healthcare arbitration agreement, a lawyer will help you determine whether it’s legally valid and enforceable.

Chicago personal injury and workers’ compensation attorney Howard Ankin has a passion for justice and a relentless commitment to defending injured victims throughout the Chicagoland area. With decades of experience achieving justice on behalf of the people of Chicago, Howard has earned a reputation as a proven leader in and out of the courtroom. Respected by peers and clients alike, Howard’s multifaceted approach to the law and empathetic nature have secured him a spot as an influential figure in the Illinois legal system.

Years of Experience: More than 30 years
Illinois Registration Status: Active
Bar & Court Admissions: Illinois State Bar Association, U.S. District Court, Northern District of Illinois, U.S. District Court, Central District of Illinois
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