Agreements to Arbitrate in a Hospital Setting: Should You Sign?

Somewhere in the stack of admission forms at a hospital, surgery center, nursing home, or physician practice, there is increasingly a page titled something like “Agreement to Arbitrate” or “Alternative Dispute Resolution Agreement.” Most patients sign it without reading it. Many sign it while in pain, frightened, or medicated. A hospital arbitration agreement can determine whether, if something goes badly wrong, your case is decided by a jury of your neighbors or by a private arbitrator. This article explains what these agreements do, how Georgia law treats them, and what we recommend.

What a Hospital Arbitration Agreement Actually Does

Arbitration is private dispute resolution. Instead of filing a lawsuit in a public courthouse and presenting your case to a jury, you present it to one or more arbitrators, often lawyers or retired judges, in a conference room. The proceedings are confidential. Discovery is usually limited. The arbitrator’s decision is binding, and the grounds for appeal are extremely narrow.

Consumer advocates have criticized these clauses for years, and the data supports the concern. Claimants in arbitration tend to recover less often and less money than plaintiffs in court, and repeat institutional parties, like a hospital system that arbitrates dozens of claims a year, have a structural familiarity with the process that a one-time patient does not. When the claim is that a provider’s malpractice caused a serious injury or a death, the difference between a jury and an arbitrator can be enormous.

What Georgia Law Says

Georgia’s public policy on this question is unusually clear, and unusually protective of patients.

• The Georgia Arbitration Code, O.C.G.A. § 9-9-2(c)(10), excludes from enforcement under that Code “any agreement to arbitrate future claims arising out of personal bodily injury or wrongful death based on tort.” A form you sign before anything has gone wrong is, by definition, an agreement about future claims.
• Georgia has a separate statute specifically for medical malpractice arbitration. Under O.C.G.A. § 9-9-62, an agreement to arbitrate a malpractice claim is enforceable only if it was made after the alleged malpractice occurred and a dispute has arisen, and only if the patient was represented by a lawyer when the agreement was signed. An admission-form arbitration clause meets neither requirement.

So why do Georgia providers keep putting these forms in front of patients? Because of federal law. The Federal Arbitration Act applies to contracts involving interstate commerce, and when it applies, it preempts conflicting state rules, including both Georgia statutes above. Hospitals and nursing homes argue that accepting Medicare and Medicaid, buying supplies and pharmaceuticals from out of state, and treating out-of-state patients make their admission agreements interstate transactions. Georgia courts have accepted that argument in a number of cases and have enforced pre-dispute arbitration agreements under the federal statute even though Georgia’s own Code would not.

Be realistic about who is on the other side. The larger the entity, the stronger the preemption argument. A regional hospital system, a national nursing home chain, or a corporate-owned surgery center can almost always show that its operations involve interstate commerce, so a patient fighting one of those defendants should expect the Federal Arbitration Act to apply and Georgia’s patient-protective rules to give way. A small independent practice has a harder time making that showing. In practice, this means the fight usually shifts from “does the federal act apply” to the contract-formation and unconscionability arguments described below.

The result is a real fight in almost every case where a form was signed. Georgia’s general rule that ambiguities are resolved in favor of arbitration means a poorly drafted challenge often loses. The safest position is never to have signed in the first place.

Common Reasons a Signed Agreement Still Fails

Even when a hospital arbitration agreement is otherwise enforceable, Georgia courts have refused to apply them for reasons that come up again and again:

• The wrong person signed. A spouse, adult child, or friend who signs admission paperwork does not bind the patient unless they held a valid power of attorney or other legal authority. Georgia appellate courts have thrown out nursing home arbitration agreements on exactly this ground.
• The patient lacked capacity. A form signed by someone who was sedated, in acute distress, or cognitively impaired may not be a valid contract at all.
• The agreement was not part of the deal. If treatment had already begun, or the form was presented afterward as an afterthought, there may be no consideration supporting it.
• It does not cover the claim. An agreement signed during one admission generally does not reach a new injury during a later, separate admission unless a new agreement was signed.
• Unconscionable terms. Clauses that shorten the statute of limitations, cap damages, or require the patient to pay the provider’s arbitration costs can render the agreement unenforceable.

Do You Have to Sign?

No. In our experience it is unusual for a provider to refuse care because a patient declines to sign an arbitration agreement, and in an emergency, federal law prohibits a hospital from turning you away. The arbitration form is typically one document in a stack, and staff rarely push back when a patient declines it or crosses it out. Many agreements also contain a rescission period, often 30 days, during which you may revoke your signature in writing. If you signed something you now regret, check the form for that language and act quickly.

Signing a general consent to treatment is different. You should sign the forms that allow the hospital to treat you. You should not feel obligated to sign a form that gives up your right to a jury for an injury that has not happened yet. For a broader look at pre-injury paperwork, see our article on what it means when you sign a waiver of liability.

What We Recommend

1. Read the admission packet. Look for the words “arbitrate,” “arbitration,” “binding,” “waive,” “jury,” or “alternative dispute resolution.”
2. Decline the arbitration form. Write “declined” across it, initial it, and keep a copy. Do not sign it.
3. Do not let a family member sign for you unless they hold your power of attorney, and even then, instruct them to decline arbitration.
4. If you already signed, look for a rescission clause and revoke in writing, by certified mail, within the stated period.
5. If an injury has already occurred, do not assume the agreement is valid. Bring it to a lawyer. Many of these agreements do not survive a challenge.

Why This Matters in a Malpractice Case

Medical malpractice cases in Georgia are already demanding. They require an expert affidavit at filing, qualified expert witnesses, and proof by a preponderance of the evidence that the provider fell below the standard of care. Our articles on what you need to know about Georgia medical malpractice law and wrongful death and medical malpractice claims explain those hurdles. Adding an arbitration fight on top, or losing the right to a jury entirely, makes a hard road harder. The right to trial by jury is written into Georgia’s constitution for a reason. Preserve it.

Frequently Asked Questions

Is a hospital arbitration agreement enforceable in Georgia?

Under Georgia’s own Arbitration Code, a pre-injury agreement to arbitrate a personal injury or malpractice claim is not enforceable. But the Federal Arbitration Act can preempt Georgia law when the provider’s business involves interstate commerce, and large hospital systems and nursing home chains can usually make that showing. Against those defendants, the agreement is often enforceable unless it fails for a reason such as lack of capacity, missing signatures, or unconscionable terms.

Can a hospital refuse to treat me if I will not sign?

Emergency departments cannot refuse emergency care. For scheduled care, a provider could in theory decline, but in practice this rarely happens. The form is usually optional whether or not the staff say so.

My mother signed an arbitration agreement at a nursing home. Is our wrongful death claim barred?

Do not assume it is barred, but be aware the law is against you on one point. In United Health Services of Georgia, Inc. v. Norton, 300 Ga. 736 (2017), the Georgia Supreme Court held that a resident’s arbitration agreement did bind the wrongful death beneficiaries, reversing a Court of Appeals decision that had held otherwise. The reasoning is that a Georgia wrongful death action is derivative, so a defense good against the decedent is good against the survivors. What remains contestable is the agreement itself: whether the person who signed had authority to bind the resident, whether the resident had capacity, and whether the agreement’s scope actually reaches the claim. Those are the fights worth having, and they are frequently winnable. Have a lawyer review the document before assuming anything either way.

Talk to an Atlanta Medical Malpractice Lawyer

If you or a loved one was harmed by a health care provider and an arbitration agreement is in the file, do not take the provider’s word that your case belongs in arbitration. Our Atlanta medical malpractice attorneys review these agreements as part of every free consultation. Call Hoffspiegel Law at (404) 760-8600 or contact us online.

This article is general information about Georgia law and is not legal advice about your specific situation.