Anyone seeking medical treatment in America’s healthcare system is likely to be asked to sign an arbitration agreement, regardless of whether they need a minor procedure or major surgery. Arbitration promises a faster, less costly, and more private way to resolve disputes between patients and their medical providers than traditional litigation – while foregoing some of the legal safeguards available to disputants in a court of law.
That tradeoff can have significant consequences, which is why the courts insist that consumers be fully informed when they are asked to accept an arbitration agreement. Verifying this can be complicated, as demonstrated by a case recently decided by the California Court of Appeal (Brockman v Kaiser Foundation Hospitals.)
Chloe Brockman, a biological female, was born in 2004. Her mother, a nurse, was hired that same year by Kaiser Hospitals, making her eligible to join Kaiser’s group medical plan. In December of 2004 she signed a one-page enrollment form for that plan, and the following month added Chloe to the plan as her dependent by signing another one-page form that also included an arbitration disclosure statement.
Both documents made brief references to arbitrating any allegations of medical malpractice, adding that the full details of the arbitration agreements were provided in separate booklets.
When Chloe’s mother transferred to a nonunion job in 2020, she used an online system to enroll them in Kaiser’s employee medical health plan. As with the union-sponsored plan, this enrollment included a form stating that any disputes about medical care would be handled through arbitration, and that the “full” arbitration procedure was contained in a separate document.
From childhood through adolescence, Chloe suffered from mental health issues that included social anxiety, depression, body dysmorphia, gender confusion and other issues.
In 2016, when Chloe was 12 years old, she told her parents she identified as male rather than female. Her doctors “immediately affirmed” her “self-diagnosed gender dysphoria,” according to court documents.
The following year, at the age of 13, Chloe began medical treatment related to transitioning her gender identity to male. However, rather than receiving psychological relief from this treatment, her mental health declined. Following breast removal surgery at age 15, she became suicidal.
In 2023 Chloe filed a medical malpractice lawsuit in the Superior Court of San Joaquin County against Kaiser Hospitals, several of her doctors and psychologists, and others. She alleged the treatment she received was not medically justified, that the risks and harms associated with the treatment had not been adequately explained to her, and that her providers failed to perform a proper psychological evaluation of her.
As a result, she alleged, she suffered “mutilation of her body and lost social and physical development” and was left with “deep physical and emotional wounds, severe regrets, and distrust of the medical system.”
Kaiser and the other defendants asked the court to compel arbitration of Chloe’s claims. In a filing more than 500 pages long, they argued that as her mother’s dependent Chloe had been continuously enrolled in Kaiser plans that included arbitration clauses.
Chloe’s attorneys said these clauses were not enforceable, for two reasons.
First, they said, both the union-sponsored medical plan and the one offered by Kaiser to its non-union employees did not satisfy California’s requirement for “prominent display” of arbitration disclosure provisions, because the enrollment forms signed by Chloe’s mother included only a reference to the full arbitration agreement rather than providing the details of the agreement when she was presented with the enrollment document.
In addition, both of the enrollment forms failed to include state-mandated language disclosing that “negligently and incompetently rendered medical services” were subject to binding arbitration.
Kaiser and the other defendants argued that the information provided to Chloe’s mother had been adequate, and that more permissive federal disclosure rules preempted California’s.
In April of 2024 the trial court ruled in favor of Chloe, denying the medical providers’ petition to compel arbitration of the dispute.
The decision noted that the documents presented to Chloe’s mother when she enrolled in the two medical plans not only failed to contain the “full arbitration provision” mentioned in the one-page documents, but the court itself was not able to locate the complete arbitration agreement until it received help from the defendants.
Thus, the court concluded, Chloe’s mother had not given valid, informed consent to the arbitration clause, making it unenforceable under both California and federal rules.
The defendants appealed but were rebuffed by the appellate justices.
“Arbitration is a matter of contract and a party who has not agreed to arbitrate a controversy cannot be compelled to do so,” the justices said.
A party seeking to compel arbitration must do more than “show the parties generally agreed to arbitrate their dispute by incorporating some arbitration provision in their contract,” they said. That party “must establish the precise arbitration provision the parties incorporated into their agreement to govern their disputes.”
Kaiser and the other defendants failed to meet this standard, making the arbitration provisions unenforceable, the justices said. They affirmed the trial court’s denial of the petition to compel arbitration and awarded Chloe her costs on appeal.
By Laurie Murphy