Beware: You May Not Have the Rights You Think You Do

Posted By: Tony Baratta | November 19th, 2015

Do you read the contracts that appear in your everyday life, at the doctor’s office, cell phone contracts, employment contracts or do you just check the box “I agree” and move on?  Please read on to find out why reading the fine print is becoming so important.

Often forced Arbitration clauses are part of consumer related contracts.  These agreements, usually buried deep within the multi-page agreements hardly everyone ever reads, foreclosures the right to go to court should something go wrong.  These forced arbitration clauses are now making their way into nursing home contracts, agreements with your physicians and even employment contracts.

 This Blog is intended as a warning.  These clauses are dangerous to you, the consumer, and should be resisted when possible. 

Here is an example:

Recently the case of a female emergency room physician at Abington Hospital was highlighted in an article in the New York Times about the concerns of forced arbitration clauses. In that case her sex discrimination lawsuit alleging a pattern of denying female physicians partnership within the medical group was forced from court to private arbitration because she had signed an arbitration agreement as part of her employment contract. This meant that she was denied a jury trial and forced to a private arbitration. Once in arbitration the medical group destroyed evidence and presented altered testimony but the sole Arbitrator, a corporate lawyer hearing the case, found for the defendant.  The doctor was left having to pay $200,000 in legal fees and Arbitration costs. In an ironic twist, the arbitrator sanctioned the defendant $1,000 for destroying evidence but charged the plaintiff $2,000 for his time reviewing her lawyers’ arguments for the sanction.

The 7th Amendment to the Constitution guarantees to right to jury trial in civil cases.  Jury Trials were established in England as a check against the power of the king who appointed judges.  If the King were to take a peasants land for example, a judge was likely to rule for the King, if he wanted to remain a Judge.  A jury of 12 was a check on that power.  During the time of the American Revolution, colonial judges served at the pleasure of the King and the King abolished jury trials in the colonies.  This was one of the complaints made in the Declaration of Independence.  Thomas Jefferson said: “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” 

As a trial lawyer representing victims of catastrophic injury, I know that a civil jury trial is the best method to ensure that safety rules are enforced and responsible parties held responsible.

In a provocative three part series (the links to which are attached to this blog), the New York Times highlighted that forced arbitration clauses in service agreements for goods and services used from birth (your ob/gyn) to death (funeral homes) have eliminated access to the courts, creating an alternative system of justice to civil jury trials which are protected as a constitutional right by the 7th Amendment.  These agreements are forcing consumers to litigate disputes in private arbitration.  The articles highlight horror stories of cases being dismissed from court and forced into private arbitration due to arbitration clauses in contracts such as the one above as well as:

  • A suit against a nursing home by the family of a 94 year old woman who died due to an untreated head wound
  • A suit against Honda by a woman who suffered injuries when her car’s brakes failed,
  • The parents of an infant born with deformities against the obstetrician who prescribed medication known to cause birth defects after mistakenly believing the woman had miscarried. 

 The concerns of private arbitration include:

  • The proceedings are confidential and not appealable, therefore there is no scrutiny of what rules are applied or how.
  • The arbitrators cultivate close ties with the companies and corporations who insist on these arbitration clauses to get repeat business. 
  • Arbitration is very expensive.  Not only does the plaintiff have to pay for her own lawyer fees, but also the Arbitrators fees for all the time spent reviewing documents, listening to testimony, making discovery rulings and issuing final decisions.  And, forced Arbitration agreements can allow for the loser to have to pay the winners legal fees.

Anthony Kline, a California Appeals Judge, is quoted in the article as saying: “This is a business and arbitrators have an economic reason to decide in favor of the repeat players.”  An Arbitrator in Los Angeles, Victoria Pynchon, explained why plaintiff’s are at an inherent disadvantage: “Why would an arbitrator cater to a person they will never see again.”

In my own practice, just this year, I have seen forced arbitration clauses used to fight access to the courts by a 70 year old woman whose roof was destroyed by a satellite TV installer and  by a woman whose collarbone was fractured by a the trainer of a nationally franchised gym who was attempting to crack her back.

Our Founders fought hard to preserve our right to a Jury trial.  The King is no longer the threat.  But big business and Chambers of Commerce now are. 

Here are the links to the articles in the New York Times that highlight these forced arbitration clauses.

Arbitration Everywhere, Stacking the Deck of Justice

http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html

In Arbitration, a “Privatization of the Justice System”

http://www.nytimes.com/2015/11/02/business/dealbook/in-arbitration-a-privatization-of-the-justice-system.html?_r=0

In Religious Arbitration, Scripture is the Rule of Law

http://www.nytimes.com/2015/11/03/business/dealbook/in-religious-arbitration-scripture-is-the-rule-of-law.html?action=click&contentCollection=DealBook&module=RelatedCoverage%C2%AEion=Marginalia&pgtype=article

Tony Baratta is a trial attorney in Huntingdon Valley, PA who represents clients who have been seriously injured including due to medical mistakes. Tony is the founding partner of Baratta, Russell, & Baratta and on the board for the Philadelphia VIP. Tony is a Nationally Certified Civil Trial Advocate, AV Rated Preeminent by Martindale-Hubbel and a  member of the Pennsylvania Brain Injury Association (BPIA).  He is also a member of the Million Dollar Advocates Forum for trial attorneys and voted one of Philadelphia’s Super Lawyers 2008-2015.

 

 

 

About the Author

Anthony J. Baratta (Tony) is a trial attorney. He has tried more than 50 cases to Juries in State and Federal Courts and has litigated thousands of personal injury and medical malpractice cases in his 30-year career. Tony is the founding partner of Baratta, Russell, & Baratta and an active board member of the Pennsylvania Brain Injury Association (BPIA). Tony is also on the board for the Philadelphia VIP and performs pro bono work for the Laurel House, a non-profit for victims of domestic abuse. In addition, Tony is a member of the Million Dollar Advocates Forum for trial attorneys, voted one of Philadelphia’s Super Lawyers for the past 13 years, and a 2018 recipient of the First Judicial District Pro Bono Award for the Civil Trial Division.

Tell us About Your Problem Our Attorneys are Ready to Help

  • Please be advised that submitting this information does not create an attorney client relationship and the information you share may not be confidential due to its transmission in this manner.
  • This field is for validation purposes and should be left unchanged.

We are Your Center City Law Firm Right Outside the City

We are “Center City” lawyers without the hassle of Center City. Located right outside the city of Philadelphia in Huntingdon Valley, PA, our office is accessible from all directions. We are wheel chair accessible with free parking and an elevator.


Baratta, Russell & Baratta

Huntingdon Valley
3500 Reading Way
Huntingdon Valley, PA 19006

Media
1000 N. Providence Rd.
Media, PA 19063

 

Get Directions

Phone: 215-914-2222
Fax: 215-914-2118