Comments on: Mandatory arbitration agreements unhealthy for patients

By: Diane Levin

Diane Levin — Wed, 20 Feb 2008 18:38:38 +0000

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!

By: Nancy E. Hudgins

Nancy E. Hudgins — Wed, 20 Feb 2008 16:49:30 +0000

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.

By: Diane Levin

Diane Levin — Tue, 19 Feb 2008 21:48:53 +0000

I couldn’t agree more.

By: Vickie Pynchon

Vickie Pynchon — Tue, 19 Feb 2008 19:23:32 +0000

Thanks Diane! We also err when we privilege mediation as well.

See http://www.negotiationlawblog.com/2008/02/articles/conflict-resolution/paternalism-selfdetermination-and-the-rule-of-law/