Should Doctors Insist That Their Patients Arbitrate? Should Patients Agree?
[Image: The Turnstiles of Taipei in Xindien Station, by Shack, June 28, 2007]
An article posted in Sunday's philly.com by Inquirer Staff Writer Stacey Burling described arbitration as "a growing trend in health care." In particular, the article focused on the practice of some physicians and other health care providers to condition their willingness to provide services on the patient's signature of an agreement to arbitrate all disputes (including malpractice claims) arising out of the physician-patient relationship. Sometimes the agreement will place limits on the nature and amount of damages that can be recovered in a malpractice action.
One patient interviewed for the article said she could never use a physician who required such an agreement because that physician had "already set the tone" of their relationship to be one of "adversaries before we even know each other." I suspect this feeling may be widespread, although that says more about most people's assumptions concerning litigation and alternatives to litigation than anything else.
How would patients feel about entering a doctor's office for the first time and having to ask that doctor to sign a form that said something like this: "I [physician] agree that you [patient] reserve the right to hire a lawyer on a contingent fee basis to sue me in court for unlimited damages in the event you are in any way unhappy with my services, and that your claim will be decided by a small group of strangers who have no training in the law or medicine and will be final and binding upon me." Sets a nice tone, doesn't it?
As one doctor interviewed for the article said, he started requiring an arbitration agreement as a precondition to taking on new patients to "somehow create malpractice reform for myself since it wasn't coming from the courts and it wasn't coming from the legislature."
If you assume that the creation of the doctor-patient relationship is a free choice for both parties, why shouldn't those parties be free to decide how disputes that arise in the course of their relationship will be resolved? To be sure, there is potential for overreaching and abuse here, but nothing that can't be overcome. Such agreements can't be forced upon patients who are in the middle of an emergent or life threatening condition; they can't require unreasonable venue, costs or other procedural rules; they can't be unclear, ambiguous or unduly complicated; they must be reciprocal; and they must not so diminish the patient's substantive rights to relief as to be "unconscionable".
The idea that such agreements are so inherently unfair and inconsistent with our society's values that they must be judicially stricken, or legislatively outlawed, rests on a fundamental mistrust of appropriate alternatives to courtroom litigation that has long been debunked.
I don't know how I would react to my doctor requiring me to sign an arbitration agreement. I'd like to think I would listen to his explanation of why he wants it, I would read it, and I would make my decision as to what it says about him and our relationship. But that would be between us.
I doubt if NJ courts will permit a doctor to require a patient to enter into such agreement.This will most likely happen as part of a single payor system, when mandated by the government.
Frank, I concur with your general assessment of the likely approach by New Jersey courts to this question, but I'm not sure the result you forecast would occur in all cases. Unless there's a case out there I don't know about, there are federal and state arbitration statutes in place that a court would have to respect, absent compelling circumstances. If the safeguards are observed and there are no obviously bad facts, why should a court decline to enforce an arms length arbitration agreement? A broad ruling that any and all pre-dispute arbitration provisions between doctor and patient are void as against public policy would be tough to justify against the legislative background. I think it far more likely that courts would pick off such agreements on a case by case basis, with the cases with the worst facts leading the way, and some agreements surviving. But others may know differently, and I'd love to hear about it.
I disagree I am not a lawyer but it seems to me the current system has failed the public good. Health care is declining in New Jersey, we slipped from 14th to 21st in the delivery of health care and second from the bottom of the 50 states in maternal care.
If we don't change the paradigm we will continue to loose quality residents, more obstetricians will practice only GYN and you can expect most of the public to deliver in clinics.
The fact is binding arbitration benefits everyone except the specialty firms. I could go on and will if provided the forum
Rich:
California has allowed arbitration agreements with health care providers for at least 30 years. See, California Code of Civil Procedure section 1295. At least two medical malpractice insurance carriers in California use these agreements (almost) exclusively.
I agree with you that they are a legitimate alternative to the court system which has benefits to both physicians and patients.
Nancy
Thanks, Nancy. The rule you cite seems to contain the kind of protections that are needed here, and states them very clearly.