The Appeals Court has ruled that a mandatory arbitration agreement printed in English but signed by a Spanish-speaking patient before he underwent Lasik surgery was enforceable in his subsequent medical malpractice claim against his eye surgeon.
Plaintiff Carlos Lopez Rivera signed and initialed the agreement, which mandated arbitration of any dispute that might arise between Rivera and his surgeon, including malpractice allegations, as part of a stack of documents provided to him before the procedure.
A Spanish-speaking assistant was allegedly available to explain the document at the time Lopez signed it, though apparently Lopez did not seek such assistance.
When Lopez — who claims Stetson’s negligent performance of the procedure caused him ongoing vision problems — brought a med-mal claim against Stetson, the surgeon moved to compel arbitration.
A Superior Court judge denied the motion, finding that the defendant doctor’s failure to translate the agreement into Spanish constituted fraud in the inducement that voided the provision.
But the Appeals Court reversed, finding insufficient evidence of fraud, misrepresentation, unconscionability or duress.
“Lopez had time to review all documentation; he had access to a Spanish-speaking interpreter at Stetson’s office; he had the opportunity to speak with Stetson in a group setting or in private; he knew he could decline to sign; and he signed the arbitration agreement,” Judge Christopher G. Hodgens wrote for the panel, quoting the U.S. Supreme Court’s 1989 decision in Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ. “Thus, the arbitration agreement here was ultimately the product of ‘consent, not coercion.’”
The 11-page decision is Lopez Rivera v. Stetson, Lawyers Weekly No. 11-091-23.
Life-altering consequences?
Plaintiff’s counsel Robert A. Scott of Worcester declined to comment on the record, noting that his client was still considering further appellate options.
Defense counsel Andrew D. Black of Lincoln did not respond to requests for comment.
But Tory A. Weigand, a Boston attorney who defends medical malpractice claims, said the ruling reinforces the strong federal and state policies favoring arbitration as well as longstanding doctrine that a party who signs an agreement is deemed to have read and understood it.
“To be sure, where there is misrepresentation, fraud or unconscionability, any contract or contractual term is invalid,” he added.
However, there was no such evidence here, where the arbitration provision was clear, brief and to the point, and ample notice was provided, Weigand continued.
“There was no real dispute that the provision was provided as part of a one-on-one session, with the plaintiff able to ask any questions or raise any concerns with Spanish-speaking staff available if needed, which the plaintiff never requested or indicated was needed,” Weigand said.
Jeffrey N. Catalano of Milton, who represents plaintiffs in med-mal cases, said it is extremely rare to see an arbitration agreement in any type of form for which a patient is undergoing a medical procedure.
“I don’t think it’s reasonable to assume that a Spanish-speaking patient would even know to question a mandatory arbitration clause in a contract. It would be quite a sophisticated patient that would review and understand the impact of signing such an agreement.”
Catalano also said the court’s ruling on the fraud and misrepresentation aspect seemed appropriate, but he thought a more extensive unconscionability analysis was warranted regarding the patient’s mental and physical condition when he was about to undergo a procedure that potentially brings life-altering consequences.
“Here you have a patient at a vulnerable point who is probably anxious, worried and focusing on the potential consequences if the procedure goes wrong,” he said. “In this case it’s potential blindness. Is the patient’s frame of mind at this point one where they would logically be giving up the right to sue if things go wrong and they potentially have to pay the other side’s fee if they lose [in arbitration]?”
Meanwhile, Catalano expressed concern about the potential long-term impact of upholding an arbitration agreement in such circumstances.
“Even for non-elective surgeries like heart surgery, brain surgery or back surgery, physicians and hospitals could slip in an arbitration provision when the patient is at one of the most vulnerable points in their lives, when they’re often in pain and emotional,” he said.
Boston attorney Susan M. Bourque, who also represents plaintiffs, said she thought the lower court judge, Valerie A. Yarashus, was correct in ruling that the agreement was void.
“I don’t think it’s reasonable to assume that a Spanish-speaking patient would even know to question a mandatory arbitration clause in a contract,” Bourque said. “Sure, the facts indicate that an interpreter was available, but most people would use a translator to ask questions about the procedure and potential risks [and] complications, not about a separate contract provision providing for mandatory arbitration. It would be quite a sophisticated patient that would review and understand the impact of signing such an agreement.”
Bourque said the Appeals Court has sanctioned physicians and medical facilities to include mandatory arbitration clauses in contracts while imposing none of the safeguards that the federal government required when it authorized arbitration agreements for nursing homes, such as the federal bar on requiring arbitration agreements as a condition for admission and providing a 30-day right to revoke consent to such provisions.
“Patients have many obstacles to overcome to pursue a medical malpractice case in Massachusetts,” Bourque said. “Now, doctors and hospitals can make an end-run around a patient’s Seventh Amendment right to a jury trial, and only those knowledgeable, educated, informed and/or sophisticated patients will push back. But at what cost? Refusal of the doctor of your choice because he or she will refuse treatment to patients who will not agree to mandatory arbitration agreements?”
Mandatory arbitration agreement
On Sept. 27, 2017, Lopez underwent Lasik surgery with Stetson at Lasik Vision Institute in Burlington.
On the morning of the procedure, Stetson provided Lopez with several forms printed in English, including an arbitration agreement form that asked the patient to agree that “any and all actions for medical malpractice” would be resolved by mandatory binding arbitration.
Lopez Rivera v. Stetson
THE ISSUE Was a mandatory arbitration agreement printed in English but signed by a Spanish-speaking patient before he underwent Lasik surgery enforceable in his subsequent medical malpractice claim against his eye surgeon?
DECISION Yes (Appeals Court)
LAWYERS Robert A. Scott of the Law Office of Hector E. Pineiro, Worcester (plaintiff)
Andrew D. Black of Smith, Duggan, Cornell & Gollub, Lincoln (defense)
Following the surgery, Lopez allegedly suffered blurred vision in his left eye, glare at night, and other complications. He ultimately had to undergo a second surgery with a different physician, which did not eliminate the blurred vision allegedly caused by Stetson’s negligence.
On Sept. 25, 2020, Lopez brought a medical malpractice claim against Stetson in Worcester Superior Court.
Stetson moved to dismiss and to compel arbitration according to the terms of the agreement.
Lopez countered that no valid agreement existed since he could not understand the document. He further contended that the agreement was the product of fraud, mistake and unconscionability.
Following an evidentiary hearing that included testimony from Lopez, Stetson and one of Stetson’s technicians, Yarashus found that nobody explained the agreement to Lopez in his native language, though a Spanish interpreter was available had he requested one.
She also found that Lopez lacked sufficient understanding of English to know what he was signing and that he was led to believe he was signing medical forms.
Citing fraud, duress and unconscionability, Yarashus denied Stetson’s motion to dismiss and to compel arbitration.
Stetson appealed.
Enforceable agreement
In reversing Yarashus’ decision, the Appeals Court panel ruled that Lopez’s lack of facility with the English language did not invalidate the agreement.
As the panel noted, Lopez had lived in Massachusetts for 12 years at the time of the surgery and had learned a “little bit” of English “on the streets.”
And even though Lopez testified that had he read the agreement in Spanish he would not have signed it, and while Yarashus found Lopez did not have sufficient English proficiency to read the agreement, the Appeals Court panel noted that in the absence of fraud, one who signs a written agreement is bound whether he understands the terms or not.
Meanwhile, the panel rejected Lopez’s argument that because he was giving up the right to a jury trial, an arbitration agreement was a “different species of document” that requires more than simply reasonable notice of its terms and a manifestation of assent.
“Lopez notes the judge’s finding that ‘he was never informed that by signing the form he would be giving up his right to a jury trial,’” Hodgens wrote.
However, Hodgens continued, quoting the U.S. Supreme Court’s 1996 decision in Doctor’s Assocs., Inc v. Casarotto, “States … are precluded from ‘singling out arbitration provisions for suspect status,’ and must view such provisions ‘upon the same footing as other contracts.’”
The panel also found no evidence of fraud, noting that no evidence, including Lopez’s own testimony, indicated that anyone misrepresented the nature of the agreement.
Similarly, the court found no unfair surprise nor oppressive terms that would justify voiding the agreement as unconscionable.
“The arbitration agreement is brief and to the point — establishing mandatory arbitration as the sole and exclusive means of settling all claims for medical malpractice,” Hodgens said. “The purpose and effect of the agreement are not unconscionable and are entirely consistent with State and Federal policies that ‘heavily’ favor submitting disputes to binding arbitration.”
