On Sept. 2, 2020, in Estate of King v. Aperion Care, the Indiana Court of Appeals remanded to the trial court a case involving a malpractice claim filed by the estate of a nursing home resident with instructions to grant the estate’s motion to compel arbitration.

The estate initially filed the malpractice claim with the Indiana Department of Insurance because the nursing home was a qualified provider under Indiana’s Medical Malpractice Act. However, the estate moved to compel arbitration when it discovered the nursing home’s admission agreement provided the “exclusive means for resolving any claims was arbitration.”

The decision raises questions as to whether qualified providers with mandatory arbitration provisions in patient agreements should exempt malpractice claims, or as the court suggests, amend the agreements to require presentation of malpractice claims to a medical review panel as a condition precedent to arbitration.

The court suggests qualified providers “could if they wished, make the right to seek arbitration subject to a condition precedent” such as presentation of malpractice claims to a medical review panel. However, this suggestion followed the court’s reiteration of its warning in Sanford v. Castleton Health Care Ctr., LLC that overbroad exclusive arbitration provisions may also contractually preempt the medical review panel process.

In light of exclusive arbitration clauses, like the one at issue, we query whether qualified medical health care providers retain the ability to avail themselves of the provisions and attendant benefits of the Medical Malpractice Act, including a limitation on the amount of the provider’s liability . . . and review of the plaintiff’s claim by a medical review panel.