More on King v. Bryant and Health Care Arbitration Agreements

by Ward and Smith, P.A.

As discussed in an earlier article, the North Carolina Supreme Court recently held, in King v. Bryant, that physicians have a fiduciary relationship with their patients due to the special relationship of trust and confidence between them.  This means that physicians, and possibly other health care providers, now have a fiduciary duty to disclose the existence, nature, and significance of any arbitration agreement or provision they intend to enforce against a patient before the patient signs it.  A failure to do so may be a breach of that fiduciary duty and could potentially limit the enforceability of the arbitration agreement or provision if the patient challenges it in court.

However, the North Carolina Supreme Court also clearly noted that nothing in its opinion "should be understood to cast any doubt upon the ability of physicians and patients, assuming proper disclosure is made, to enter into appropriately drafted" agreements that include an arbitration provision.  With that caveat in mind, many physicians and other health care providers may be left wondering:  What exactly constitutes an "appropriately drafted" arbitration agreement or provision?

The Court's Observations in King v. Bryant

King v. Bryant sheds a bit of light on the specific language that will likely be required for a health care arbitration agreement to be enforceable, evidenced by the North Carolina Supreme Court's reference to, and approval of, the trial court's analysis regarding the problematic provisions of the arbitration agreement at issue in the case.  Those particular issues included:

  • The agreement the patient signed did not provide any language stating that "arbitration" effectively meant the patient waived the right to a jury trial in the event of any claim related to the patient's care.  In fact, it did not include the word "jury," "judge," or "trial" at all. 
  • The arbitration agreement did not provide any language allowing or recommending the patient consult with an attorney prior to signing it. 
  • The agreement repeatedly referred to the term "arbitration" but did not define that term. 
  • The agreement was replete with incomplete clauses and complex, lengthy, or nonsensical sentences.  For example, one sentence implied that health care services were to be provided "by the patient" rather than the physician.
  • The agreement's provision requiring at least one arbitrator to be a physician, and its provision allowing all three arbitration panelists to be physicians, was beneficial only to the health care provider and was detrimental to the patient.

These problems ultimately led the trial court to deny the physician's motion to compel arbitration, a decision affirmed by both the North Carolina Court of Appeals and the North Carolina Supreme Court. 

Recommendations For Agreements Containing Arbitration Provisions

To avoid this same outcome, and to help ensure that an arbitration agreement or provision is "appropriately drafted," health care providers should make certain that their agreements:

  • Include a plainly worded explanation that binding arbitration waives the patient's right to pursue other legal remedies, including the right to a jury trial. 
  • Include language recommending that the patient consult with an attorney prior to agreeing to arbitration. 
  • Include a definition of the term "arbitration."  The North Carolina Uniform Arbitration Act does not provide a definition of arbitration, but the American Arbitration Association defines the term as "an out-of-court resolution of a dispute between parties to a contract, decided by an impartial third party."  No matter how a drafter chooses to define the term, the arbitration provision should, at a minimum, state that arbitration is a method of dispute resolution different from a proceeding in a court of law which takes place without a judge or a jury, and is binding between the parties. 
  • Contain no typographical errors, incomplete sentences, longwinded clauses, or complex language.  Regardless of educational level, the patient reasonably should be able to understand the agreement.  Simple language, not legal jargon, should be used.  There should be no ambiguities or inconsistencies, and the arbitration provision should not be hidden within the agreement through the use of type that is smaller than the other parts of the agreement.  Failing to following these guidelines could render an entire provision "nonsensical" and may ultimately prohibit enforcement of the agreement or provision. 
  • Provide how arbitrators will be chosen and the method of arbitration, and clearly explain that process in the agreement.  In general, parties in North Carolina are free to choose a particular arbitrator or arbitrators by agreement, and under the North Carolina Uniform Arbitration Act, parties can choose an association, agency, board, commission, or other entity that is neutral and administers the proceeding.  Despite this freedom, in light of the opinion in King v. Bryant, health care providers should either name arbitrators who are completely neutral, such as judges or attorneys, or allow the patient and the health care provider to mutually agree upon particular arbitrators in the event a dispute arises, so that an eventual arbitration scenario will not heavily favor the health care provider over the patient.

In addition to the above points, which are based on the court's specific observations in King v. Bryant, it is recommended that a health care provider agreement containing an arbitration provision:

  • Be reciprocal, meaning that it should be clear that either the health care provider or the patient can demand arbitration rather than a court proceeding before a jury.
  • Be made applicable to both collections issues and malpractice claims.  Although the health care provider does not want to plant seeds in the patient's mind, the agreement or provision may be more likely to be upheld in a malpractice context if it specifically mentions that it applies to a claim of malpractice. 
  • Contain language stating that the agreement is voluntary and not a precondition to receiving health care services unless the health care provider intends to reject any patient who refuses to sign an arbitration agreement.  If the health care provider does not intend to deny services to a patient who refuses to sign an agreement with an arbitration agreement, it may be wise to give the patient a certain period of time, such as seven days after the date of the agreement, to withdraw consent to the arbitration provision and to state that any such withdrawal will not affect the rendering of medical care.
  • State that the agreement and the arbitration provision are binding and shall inure to the benefit of the respective personal representatives, heirs, successors, and assigns of both the health care provider and patient.

In addition to ensuring adequate content, health care providers should provide the patient with a copy of the signed agreement.   

Finally, each health care provider should confirm, in writing, with its malpractice insurance carrier that an arbitration agreement or provision will not adversely affect coverage. 


Because the opinion in King v. Bryant entered into previously unchartered waters, it is unclear if revisions to any arbitration agreement that merely ameliorate the problems discussed in the case will be enough to make the agreement bulletproof.  However, providing a detailed but straightforward agreement that clearly explains the nature and effects of arbitration can put a health care provider in a better position to compel arbitration if a malpractice claim ever arises.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ward and Smith, P.A. | Attorney Advertising

Written by:

Ward and Smith, P.A.

Ward and Smith, P.A. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.