Mandatory arbitration agreements unhealthy for patients

Two different sources — one approvingly, one not — report that a growing number of doctors are asking patients to enter into agreements to arbitrate malpractice claims and waive their right to trial by jury.

Both sources link to “Arbitration a growing trend in health care“, a story appearing earlier this month in the Philadelphia Inquirer :

Michael Cohen was handed an arbitration agreement when he visited his longtime primary-care doctor in Bucks County. Cohen said he was not the suing kind, but the thought of being asked to give up his right to sue “stopped me in my tracks.” He said no, and his doctor saw him anyway.

Then Hedy Cohen, who has had a kidney transplant, was mailed a similar form by a group of kidney specialists she planned to see for the first time. The form from Hypertension-Nephrology Associates in Willow Grove insisted on binding arbitration and said she would have to pay the doctors’ legal fees if she filed a complaint and lost.

Hedy Cohen said no and was told to find another nephrologist.

That was fine with Cohen, a nurse with a master’s degree in health-care administration. “I couldn’t have a relationship with this person because they had already set the tone,” she said. “We’re adversaries before we even know each other.”

You can count me in the camp that considers such agreements a really bad idea. Never mind all of the usual arguments against mandatory arbitration agreements — they go without saying. The chief problem I see is the message it conveys — it says plainly, “I care more about my own self-interest than I do about the quality of my relationship with my patients.” What impact does that have on a patient’s trust? What does it say about the physician’s priorities? His or her sense of duty to that patient? What does it convey about that physician’s commitment to providing good patient care — what is at bottom good customer service? It would tell me as a patient all I need to know — to seek medical care somewhere else.

What if instead a physician asked a patient to enter into a very different kind of understanding? An understanding premised on trust, mutual respect, and a willingness to communicate?

It’s not so far-fetched. Listen to “Medical Apologies“, which aired recently on Radio Boston. It describes what happens when health care professionals actually talk to patients when medical procedures go wrong. It means fewer lawsuits, not more, when doctors apologize to patients for medical errors. And it represents a healthier direction for the health care field and for patients than the mandatory arbitration trend.

4 responses to “Mandatory arbitration agreements unhealthy for patients

  1. I couldn’t agree more.

  2. Diane,
    I agree with you about apology in cases of medical error and I’m a strong proponent of the apology movement. Thanks for the link to the Real Boston site.
    I’ve had personal experience with arbitration agreements. I’ve lived in California long enough that my first OB/GYN retired and I now have a physician-patient relationship with a second. Both required that I sign arbitration agreements before I became their patient.
    I was not upset at being asked to sign the agreement. First, I’m an optimist, and I just assume that nothing bad is going to happen. Second, I wanted to be treated by these specific physicians. They were well-known and well-respected.
    When I signed the agreement I didn’t feel that they not caring, nor that they would not give good customer service. In fact, the first delivered my children and could not have been a more wonderful physician and person. He was compassionate and a great communicator.
    I see the potential danger that you are suggesting, but I think it depends on the physician. To me, the medical skill and the interpersonal skill of the physicians were more important than which malpractice insurance they chose to buy.
    I realize this is anecdotal, but I wanted to share another point of view.

  3. Nancy, thanks so much for presenting the other side on this issue. It does make a difference when there’s already trust there, or when a physician possesses strong interpersonal skills and evinces the ability to communicate well with patients. I wish all of us could be cared for by medical professionals with that kind of demonstrated commitment to patient care. I’m really grateful that you were able to provide this first-person account.

    I do have a thought in response to the excellent observations you make here. Let me point out that you’re an attorney. You understand what rights you gave up in signing these agreements. No doubt you have resources and professional contacts you could call upon should you ever need to (god forbid) pursue a claim in arbitration. That levels the playing field between you and your physician.

    My concern lies with the many patients who simply don’t understand what it is that they’re signing away. It’s difficult, too, when you’re struggling with health issues and may be desperate to find a doctor who can treat your condition — few of us can make good decisions under those circumstances. These aren’t arms-length negotiations. What results are take-it-or-leave-it contracts of adhesion.

    The other problem I have with mandatory arbitration, whether it’s in the consumer context or here when the provision of medical care is involved, is that it ensures a private hearing for matters in which the public has an interest. Sunshine, as they say, is the best disinfectant. All of us benefit from the light that public litigation can shine on medical incompetence or defective products. Not all of us are fortunate to have doctors who are willing to communicate.

    I’m fascinated by the apology movement that’s spreading through the medical profession. That seems a much healthier way to deal with adverse medical outcomes. It promotes openness and honesty in the doctor-patient relationship and ultimately leads not only to less litigation but also the early reporting of errors. I’m all for anything that gets people talking to each other directly instead of through their lawyers in a courtroom. Mandatory arbitration won’t do that.

    Thanks again, Nancy. Your contributions are always appreciated!

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