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.
While litigation can help plaintiffs recover damages or obtain injunctive relief, there is one type of relief that a judge cannot order one party to bestow upon another: a sincere apology. Mediation, on the other hand, promotes dialogue and helps parties engage in perspective taking. This often leads to recognition of impact of one’s actions on others, acceptance of responsibility, expressions of regret, and even the long-sought-for apology.
