On October 19, 2016, Portsmouth Circuit Court rejected an arbitration clause in a medical malpractice case against a nursing facility, Foster/Bults v. GGNSC Portsmouth, LLC t/a Golden Living Center – Portsmouth, No. CL16 – 1067. Its “first impression” letter opinion found that the arbitration agreement was not covered by the Federal Arbitration Act (“FAA”) because the transaction at issue did not constitute “interstate commerce” – despite the agreement reciting that it did and the defendant nursing home being an out-of-state corporation. Id. at 1-2.

Foster/Bults declared: “To allow such a clause would promote avoidance of Virginia laws and would be unconscionable and in violation of public policy.” Id. at 2 (emphasis added). The letter opinion specifically cited Va. Code §8.01-581.12, the “anti-arbitration” provision of Virginia’s Medical Malpractice Act. Id. at1.

Foster/Bults distinguished Amchem Prod. v. Newport News Circuit Court Asbestos Cases, 264 Va. 89 (2002), which upheld arbitration agreements under the FAA. The letter opinion delineated that Amchem involved 597 plaintiffs, multiple national manufacturers and distributors, and a Delaware trust corporation. Id. at 1-2.

Foster/Bults reflects the growing public, governmental, and judicial backlash against corporate American leveraging individuals with arbitration agreements, which are inherently inequitable. Arbitration denies victims their constitutional right to trial by jury of peers and fosters medical malpractice remaining shrouded in secrecy beyond public scrutiny and discipline.