Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)
Attached hereto as Exhibit 1 is a true and correct copy of the Burks v. Kaiser case with the appendix attached to that opinion, which is a copy of the alleged arbitration waiver form which was held unenforceable by the Burks Court. A comparison of that document with Exhibit C attached to the Notice of Universal Plan Defendants’ Petition to Compel Arbitration and Stay Action shows that they both suffer from the same defect in that the arbitration language is not prominently displayed as required by Section 1363.1.
Because of the defects in the putative arbitration election form at issue, Universal Plan argues that Section 1363.1 and Burks v. Kaiser Plan are inapplicable because federal Medicare statutes preempt state law.
However, defendants’ preemption argument does not prove that Ms. Smith made a knowing waiver of her right to a jury trial in her medical malpractice suit. Whether a provision in a contract will or will not be considered a valid waiver must be determined according to state substantive law.
All that the defendants’ argument amounts to is that federal law will preempt state law to the extent they conflict. The defendants do not inform this court as to which body of substantive law this Court should apply to make the determination as to whether the waiver was valid. Notably, the defendants do not point to the existence of federal substantive or common law governing the subject.
The contract in question was entered into and was due to be performed in California. Therefore, if any state substantive law is to be applied to determine the question of validity of a waiver in a written contract, it would be California’s. Defendants clearly argue that California law does not apply, but they do not say what other law would apply.
The question of whether state law will apply in cases where there is a relevant federal statutory scheme was addressed in Clearfield Trust Co. v. United States (1943) 318 U.S. 363. 63 S.Ct. 573, 87 L.Ed. 838. The “Clearfield Doctrine” can be stated as follows: (1) if the rights and duties of the parties derive sufficiently from a federal source, then federal common law may be held to govern aspects of the case on which no specific constitution or federal statutory provision provides the rule of decision; (2) upon concluding that federal common law is to govern, the court must then determine whether that law is to be a uniform federal common law or whether the federal rule is to be incorporated from state law. c.f. Southern Pacific Transportation Co. v. United States of America (1978) 462 F. Supp. 1193. 1201. (See Part 3 of 3.)
For more information you are welcome to contact personal injury lawyer, Moseley Collins.