Should survivors of a deceased patient be allowed to sue for medical malpractice if the patient had signed a medical arbitration agreement?

Utah law says no, but a case pending before the Utah Supreme Court could determine if such agreements violate the constitutional rights of surviving family members.

The case concerns a Spanish Fork woman, Christine Baker, who is suing Intermountain Health Care and her husband's physician for failing to diagnose and treat her husband's heart disease. Gary Baker, 53, died of a heart attack. An attorney for the Bakers, Craig Snyder, says the suit alleges that despite repeated complaints of chest pain, Gary Baker's physician took no steps to treat him for heart disease before his fatal heart attack.

Distraught over the loss of her husband, Snyder said, Christine Baker wanted to seek legal damages for her own pain and suffering for the loss of her husband. It wasn't until two months after Gary Baker's death that his wife discovered her husband had signed a medical arbitration agreement, waiving his right to sue IHC and agreeing that all claims, including any by his surviving family members, would be handled instead through binding arbitration.

The case is currently on hold at the district court level until the Supreme Court rules on the constitutional question.

Snyder says IHC's agreement should not apply to Gary Baker's family, because they never had a chance to sign the document and were not even aware of it. He argues the Constitution guarantees individuals due process and a fair trial.

"There is language in our Constitution that guarantees those rights and there's language in these agreements that purports to take away those rights," Snyder said.

The case has caught the attention of the Utah Trial Lawyers Association, which filed as a friend of the court to express concern that IHC's arbitration agreements keep surviving family members from taking hospitals and health care providers to court for malpractice.

The Utah Medical Association has also filed as a friend of the court to defend IHC and such agreements.

"We don't have a problem with someone standing in the shoes for a patient and suing on their behalf," said R. Chet Loftis, attorney for the Utah Medical Association. However, Loftis said, because such claims could be "derived" from a medical situation covered by a previously signed arbitration agreement, the agreement should still apply.

Even claims of loss of consortium or loss of quality of life, similar to Christine Baker's, still stem from a medical episode covered by the agreement signed by her husband, Loftis said.

Medical arbitration involves a hearing before a three-person panel. The medical facility or practitioner chooses one representative, the complainant another, each paying the fees for their own representative. The third member is a "neutral" party, whose fees are split between the two sides. Decisions are binding and cannot be appealed unless there's evidence of malfeasance on the part of that neutral participant on the panel.