Category Archives: Health Care and ADR

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.

Apologies can improve the health of hospital-patient relations

Transparency and dialogue result in healthier patient-hospital relationshipsAll Things Considered, a National Public Radio news magazine, recently aired a program on the benefits for both patients and the medical profession when hospitals find better ways to respond to medical errors and unsatisfactory patient outcomes in “Practice of Hospital Apologies Is Gaining Ground“.

What stands out is the reaction of one patient interviewed for the program whose doctors failed to make an early cancer diagnosis. Instead of denying responsibility for the error, the hospital’s attorney arranged a meeting with the patient, the patient’s husband and her attorney, and the two oncologists who treated her. The patient had this to say about the experience:

My husband and I both left that meeting feeling like a million bucks. I was heard that night. That’s all I really wanted. I wanted them to know that this was not right, what happened to me.

The hospital’s attorney, also interviewed for the story, emphasized how important these conversations are for everyone involved. Looking back on a case early in his career in which a jury returned a defense verdict for his client, he remembered,

After the jury was dismissed, the lady who sued my client leaned across the podium and said, ‘If you had only told me everything I heard in this courtroom, I would never have sued you in the first place.’ That really left a mark on me, and for 20 years I wondered why we never talk to each other.

The benefits of these programs are numerous. Not only does everyone save money on legal costs, and not only do both sides learn important information from each other during the course of the conversation, but this willingness to be open encourages medical staff to come forward to report errors, which means greater safety for patients.

Listen to the story here–it’s well worth the six minutes it takes to hear those involved describe just how invaluable talking to each other can be.

(Photo credit: Wolf Friedmann.)

Health care lawyer, mediator, and arbitrator hosts Columbus Day Blawg Review

Blawg Review 129 hosted by health care lawyer David HarlowBlawg Review #129 is hosted this week by David Harlow, a health care lawyer and consultant who also serves as a neutral in health care mediation and arbitration and assists clients in developing and implementing alternative dispute resolution processes. David, who is based in Newton, Massachusetts (practically right around the corner from Marblehead, Massachusetts, where I sit typing this), publishes HealthBlawg.

Blawg Review is the weekly review of the best in law blogging, hosted each week by a different legal blogger. Blawg Review of course isn’t just for lawyers–there are some good reasons why mediators should read it, too. (Especially next week when New Zealand mediator Geoff Sharp and I are hosting Blawg Review #130–Blawg Review’s first double-hemisphere edition which will honor Conflict Resolution Day. The sun never sets on the Blawg Review empire…)

(Photo credit: Iwan Beijes.)


To continue with the topic from February 5’s posting concerning the power of the apology in reducing litigation over medical errors, today’s Boston Globe carries a story unnervingly captioned “The horror of awakening during surgery“. (Yikes.)

The advice to anesthesiologists in the event this befalls a patient on the operating table? ”If a mistake was made, the doctor should apologize.”

Moral of the story: Never mind malpractice reform.

Just say you’re sorry.

AN APOLOGY MAY BE THE BEST MEDICINE: Reducing medical malpractice suits

apology the best medicineWhile 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.

As a mediator, I cannot tell you how many times I have heard plaintiffs say, “Listen, the only reason I went to court is that they never even said they were sorry. If they’d told me they felt bad about what happened, we wouldn’t be here now.” Evidently, the power of those three magic words—“I am sorry”—cannot be underestimated.

University of Michigan hospitals put this premise to the test in a two-year study and concluded that apologies may be the best medicine for reducing medical malpractice suits by patients against doctors.

Click here for the full story from National Public Radio.

[Update: For a follow up to this story, please read “PHYSICIAN, HEAL THYSELF: Apologies found to reduce medical malpractice litigation“.]