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Bringing a claim against a doctor for medical negligence isn’t a small matter. It means that you’ve likely been the victim of a serious wrongdoing. It’s clearly a stressful time and one that can be made worse if you’re bringing that claim against Kaiser Permanente.

We asked Jeff Milman, a member of the Advocate Law Group Network who has been practicing law for over 25 years and specializes in medical negligence, to explain the difference between claims against Kaiser and those brought against other insurers. “Well, if you bring a claim against a doctor who is not part of the Kaiser system, you would bring a lawsuit, and depending if that doctor has a private arbitration agreement, then that case may be diverted out of the court system. That’s the kind of agreement you always see when you go into a doctor’s office that they ask you to sign. Some of those will wind up in arbitration. But if you sue a regular doctor, you’re going to be in Superior Court. There’ll be a defense lawyer. You’ll have a lawyer and you’ll get your day before a jury.”

The Kaiser process

Kaiser’s arbitration system is a bit different than others. Claims are filed with the OIA, or the Office of Independent Administrator. Milman, who is very familiar with the OIA, explained, “What you do is, instead of filing a lawsuit, you file a demand for arbitration and then depending on the complexity of the case, there will be a neutral arbitrator who will hear the case eventually and make a binding decision, which usually is not subject to judicial review. That means you don’t get appeals. Sometimes, if the case is a big one, they’ll be party arbitrators, where the claimant, meaning the person who’s bringing a claim against Kaiser, has their own arbitrator. Kaiser themselves has their arbitrator and then there’s the neutral. So you get a three-panel. The party arbitrators are usually nothing more than hired guns.”

Who chooses, and pays for, the arbitrator?

When you’re required to go through arbitration, it’s important to understand some of the specific requirements of the system, such as who chooses, and pays for the arbitrator. Milman provided the details. “As far as choosing the arbitrator, well, that’s the trick. What generally happens is that you are presented, once you file a claim against Kaiser, with a list of ten arbitrators, and its rank and strike. You’ll strike a few; they’ll strike a few and eventually one person will be picked.”

“What I prefer to do is circumvent that and once I find out who Kaiser’s defense lawyer is, since we all know each other, hopefully nine times out of ten we can usually stipulate to a retired judge or someone we know to decide the case. So that’s one of the most important things, besides who your attorney is, is who that individual is that is going to decide that case if it goes all the way.”

“On the issue of paying the arbitrator, unfortunately, claimants generally have to pay for their own arbitrators to go through the process. However, there is now the ability to sign a waiver of party arbitrator form and to sign a form whereby you agree to have one single neutral arbitrator and the whole process paid by Kaiser.”