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A state court in Utah refused to vacate an arbitration award in a medical malpractice suit after finding no clear evidence that the award was procured through fraud.
In Fleming v. Simper, No. 20051174-CA, 2007 WL 851589 (Utah Ct. App. Mar. 22, 2007), Fleming brought a medical malpractice claim against Simper, alleging that Simper released her too soon after a surgery. An arbitration panel issued an award in Simper's favor. Fleming sought to have the award vacated, arguing that the award was procured by fraud because Simper perjured himself before the arbitration panel.
More specifically, Fleming claimed that Simper lied by stating that a third or more of his patients were sent home on oxygen. Subsequently discovered hospital records did not appear to support this assertion.
While the Court noted that proof of perjury could lead to vacatur of an arbitration award, it determined that no such proof was offered in this case. Because Simper offered "an estimate" rather than a factual assertion, the evidence could prove only that he was "mistaken," not that he intentionally misled the arbitration panel.
In addition, it was not clear that Simper's testimony was material to the panel's findings because both conflicting and corroborative evidence was offered.
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