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How to Survive A Kaiser Mandatory Binding Arbitration

In a brief study of cost differences between states with binding mandatory arbitration in Kaiser contracts and those that do not have a mandatory arbitration clause in their Kaiser contracts, we have found that there is no substantial difference in cost of premiums.  Binding mandatory arbitration does not appear to have any bearing at all on the patients premium cost.
        I had originally had this very positive idea that this page would just be quick pointers and facts about the Kaiser arbitration system that would be of assistance for individuals going through this type of a legal situation.  Unfortunately, there is very little to say about Kaiser arbitration that is positive.  Like everything else Kaiser related, it is set up only to help Kaiser and not the patient. Oh, I know what the rules say and I know what the government says but again you have to consider that theory doesn't always work when it comes to the health care industry. 

The following is the truth as has been repeatedly reported to me for many years. 

1.  If you can mediate with Kaiser then do so.  You will probably be strongly encouraged to sign a gag order and it will not be documented as having occurred in any legal realm available to the public but you stand a better chance overall.  You will survive with at least most of your self respect intact.   There will be no record that your mediation ever took place.

2.  If you are forced to arbitrate keep in mind that since these arbitration records are in government databases for tracking purposes, Kaiser wants to make sure the material looks good only for them so your odds of coming out ahead are slim to none. Good data in government databases gets Kaiser government grants and donations and CONTRACTS.  These are Kaiser's meal tickets and they don't want them taken away. 

3.  Arbitration is going to cost you a lot of money no matter if the attorney is covering initial expenses or not.  In the end the attorney has to be reimbursed so costs for medical experts, etc. will come out of any settlement and will probably be the greater percentage of the settlement.  Kaiser has set aside more money than you or your attorney  just for the purpose of making this as difficult as possible.  Kaiser reported in 2005 that they set aside $40,000,000.00 just for these little (to them) pesky legal matters.

4.  Expect to have a Kaiser Private Investigator tailing you and talking to your friends, neighbors, ministers, co-workers, people at the market, at your children's schools, at your place of employment at the movies, etc.   They might claim that they are gathering data but they are really just trying to intimidate you.

5.  Expect to find out through your neighbors, children's schools, your church, co-workers, etc., that everyone now knows about your personal medical history because someone has gone around and told these people about you.   Again, this is just a classic form of Kaiser legal intimidation.

6.  Every single traffic ticket you have ever had, every single indiscretion that you have ever made from the age of 5 on up will now be publicly used against you, if your attorney allows it.  Only true friends will help you track this release of information back to the source.  Most people will not want to become involved in helping you because they will not want it done to them as well.  Expect lots of crank calls.  Don't be shocked if you even receive threats.   Again, they are just trying to intimidate you and get to you drop your legal action.

7.  Expect to be ordered to present at the very last minute the previous ten years of all IRS filings.  Kaiser will attempt to discredit you by implying that you have lied on your taxes.  Because it appears that they do this with their records they automatically assume that everyone else does.  It isn't true that most people lie and most people can clearly show that but again Kaiser may do this to you. It is just another form of intimidation.  It also takes time for Kaiser to do this during the arbitration and when you are paying for it, time is money.

These actions or accusations are often followed by a preplanned dropping of a large book to make a loud sound or some other stunt to distract everyone.  In doing so the last thing in everyone's memory is the accusation or implication made by Kaiser staff.  It is a little mind game that the attorneys sometimes play.

8.  Expect Kaiser to create negative information about you.  Expect Kaiser to conduct an arbitration as if it were a nasty divorce preceding. 

9.  Expect during the arbitration to have what is left of your belief system that you have developed over the years about right and wrong to be further destroyed.  You probably will see and hear things that will make you wonder why the government is allowing this type of a system.  You probably will see and hear things that will momentarily make you think that you are really living in a corrupt third world country.

10.  After the arbitration, if you are unable to now obtain medical insurance elsewhere, expect to have Kaiser staff forget to give your family their immunization shots, to follow up on medical treatments, to even be able to readily find medical appointments for you. They will make it appear that they are suddenly very busy and that they are also just having a lot of clerical errors.   Their actions would be called retaliation by the majority of the world.

11.  If you have won an arbitration and have been granted a financial settlement expect to wait a long time to receive the check. In fact expect and be prepared to have to hire an attorney to collect the check for you.  Just because Kaiser was told to do something doesn't mean that they will be in any hurry to do so on their own. 

12.  Be prepared to find that your "trusted" family doctor turns on you during an arbitration and has suddenly documented all sorts of things about you and your family that you never knew happened.  This is a great form of creative writing on Kaiser's part and they really should start winning some fiction awards for it but this is harmful to your case.

13.  Kaiser attorneys are also great actors and probably should be nominated for some awards. Most people would realize that these are scripted parts that have been well rehearsed but that the script also has unbelievable flaws. Depending on who the arbitrator is and where their next meal ticket is coming from it is often likely that the arbitrator will applaud these performances. 

14.  Don't be shocked if during the arbitration that the Kaiser attorney and the arbitrator during proceedings make lunch arrangements together or talk about their children's play dates.  

15.  If at all possible have a court reporter document everything during the arbitration.  Then you will be at least able to prove what you experienced at a later time.  It may not change the result of the arbitration but at least you will be able to prove what you witnessed.

16.  Do not expect to receive anything from Kaiser as a result of these proceedings.  You have waived many of your Constitutional rights by going to arbitration and there is no record in most cases of what has taken place.  You are going to spend a great deal of money to arbitrate and it is very likely that you will never get it all back.  See it for what it is.

For Attorney's that may have an interest in Kaiser Arbitration matters:

Harrison's Principles of Internal Medicine has a section in its chapter on preventive medicine or the doctor-patient relationship about how a physician in an managed care environment has to keep detailed chart notes so that other physicians who are seeing the patient know what's going on.

When you take your expert depositions, just get them to acknowledge that Harrison's is a reliable source per Evidence Code 721. Then you can use it at arbitration.

Some relevant links:

Kaiser Arbitration May Be Unenforceable, Says Unfair Business Competition Case Finalized Today

Arbitration in California Managed Health Care Systems