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Are There Ethical Standards for Medical Arbitration Agreements?

Todd Slaughter — Mon, 29 Jun 2009 19:24:04 GMT

Doctors can refuse to see patients who object to signing an Arbitration Clause. However, if the situation is a medical emergency the doctor cannot ethically refuse treatment where the patient will not agree to the clause. The American Medical Association (AMA) Principles of Medical Ethics states: “A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate....”. American Medical Association, Principles of Medical Ethics, 2001, available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/principles-medical-ethics.shtml. Yet, other principles within the same canon are directly adverse to the argument that a doctor can refuse to treat patients not presenting an emergency and who refuse to sign an Arbitration Agreement. The following principles from the AMA canon are relevant to this analysis:

“A physician shall support access to medical care for all people”. Id.

“A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient”. Id.

With regards to the first section, requiring patients to sign an Arbitration Agreement certainly conflicts with the concept of open access to medical care. These agreements close access; they limit medical care to only those that agree to relinquish certain constitutionally guaranteed rights. As more and more providers demand arbitration clauses in their service agreements, patients unwilling to sacrifice their legal rights have fewer and fewer providers available to them.

Concerning the second principle, requiring patients to give up legal rights before offering treatment reflects an aversion to, rather than a respect for, the law. This canon also imposes a responsibility upon the doctor to seek changes in the law if necessary to preserve the "best interests of the patient." This is intuitively contrary to a doctor's efforts to change his legal relationship with his patient by requiring mandatory arbitration agreement that lessens the patient's rights. Of course, doctors have argued that lower malpractice premiums serve the interest of the patient by keeping medical costs down. However, these minor cost savings are of small solace to the patient that suffers serious injury or death from the physician's malpractice. For that patient or the loved ones, the loss of the full remedies recognized by law is monumental in comparison.

It is important to note that the AMA principles are not laws themselves and only serve as standards of conduct. They guide physician behavior rather than govern it. In light of the increasing number of physicians and medical providers that are incorporating arbitration clauses into their service agreements, greater ethical guidance is needed from the AMA. Otherwise we may be vexed with a loss of physician accountability combined with a continually decreasing level of care.

Originally posted at InjuryBoard by Todd Slaughter

First Year Lawyer Discuss Medical Arbitration Agreements with First Year Doctor

Todd Slaughter — Wed, 01 Jul 2009 15:46:03 GMT

When Worlds Collide: First Year Lawyer talks with First Year Resident-Doctor about Arbitration Agreements

When it comes to personal injury and Arbitration Agreements, lawyers and doctors can share dramatically different views. These differences are evident in the conversation between a first year lawyer and a first year resident in general surgery.

Legal Training Is Scant: Looking at the curriculum of medical school it’s easy to see that legal training is at the bottom of the totem pole. Even a mere 3-hour course is a combination of legal requirements and medical ethics. Furthermore, even medical students and doctrs will tell you it's a generalized course as far as legal rights, documentation, and morality are concerned.

Do doctors even understand what Arbitration Agreements really entail?

L: “So Doc, do you understand what an Arbitration Agreement is?”

D: “I think it is a sentence in a binding agreement in which it is mutually agreed upon by two parties.”

L: “Okay, but do you understand what a person/patient sacrifices when they sign an Arbitration Agreement?”

D: “Yes, I believe that I do…it means they have to abide by the agreement they signed and can’t pursue other remedies.”

L: “Kinda...but it basically keeps the patient from being able to bring a medical malpractice suit against the doctor because they are waiving their right to a jury trial.”

D: “But I would think that the patient could still sue for negligence”

L: “How so?, because medical malpractice is negligence, so the Arbitration Agreement applies.”

D: ----Silence---

Do doctors have the ability to meet full disclosure requirements when it comes to Arbitration Agreements?

L: “Moving along, what’s your view on these clauses so far then?”

D: “So far, all I know is that anything the patient signs off on I have to inform them of. Nothing gets signed off on unless there is a witness, like a nurse, resident, or attending."

L: “Well if you have to inform them, where do you get your information for explaining what it means? Does it come for the insurance company, the overseeing doctor or nurse?”

D: “That’s a good question. I am not 100% sure but I assume it’s based on hierarchy, but they are usually standard forms.”

L: “Did you know that most Arbitration Agreements are signed without the doctor present and without explanation?”

D: “As far as that is concerned, I don’t see how because I can’t do a procedure without the patient knowing everything. I don’t think that an Arbitration Agreement would hold any water b/c in the hospital it is mandatory for us to make sure the patient understands everything, even if that requires bringing in an interpreter.”

L: “Then would you say a physician’s failure to explain something is a more common occurrence in office of a primary care physician than that of a surgeon?”

D: “Ethically the patient should know, regardless of whether it’s surgery or everyday treatment by a primary care physician. But, it’s risk vs. nature of the interaction. I have more of a risk as a surgeon for medical malpractice suits.”

Are doctors willing to take a stand against mandated Arbitration Agreements?

L: “If your insurance carrier required you to have your patients sign an Arbitration Agreement before operating then would you do it?”

D: “That’s a sticky situation because if they will only ensure me if I have patients sign it then I am in a hard spot; but for surgery, if it’s the only way I can get insurance, then absolutely. I just don’t think anything good comes out of medical malpractice lawsuits.”

L: “You don’t think that the system helps ensure the right people are practicing medicine, operating, and holding their services out to the public?”

D: “No, because 90% of the time these suits are frivolous and accomplish nothing.”

L: “But if they are frivolous then wouldn’t a jury be able to determine that? Why should a person be relegated to arbitration?”

D: “Sure, 1 in every 100 suits has merit, but the jury always looks to penalize the doctor no matter what. Don’t get me wrong; I don’t think that insurance companies should require doctors to have their patients sign off on Arbitration Agreements because I think it should be between the patient and the doctor. However, there has to be a way for me to do my job without paying absurd premiums and without having to be a doctor and an attorney at the same time.”

Note from the Editor: Interesting perspectives! However, in 30 years of practice I have never seen a jury "penalize" a doctor. Rather, juries are generally protective of the doctor, the field of medicine that is practiced, and the doctor's reputation. Also, arbitration clauses do not afford any greater protection against so-called frivilous suits than judicial proceedings. Finally, the standard of care for medical doctors is not set by attorneys, as Newt Gingrich repeatedily espouses. Rather, it is set by the doctors themselves. A doctor does not have to be a doctor and an attorney at the same time. The doctor only needs to follow the standard of care set by other similar doctors in the community.

Originally posted at InjuryBoard by Todd Slaughter

Do You Sign Your Doctor's Arbitration Agreement

Todd Slaughter — Thu, 25 Jun 2009 20:30:33 GMT

There is an increasing trend in the medical community to have patients sign off on a Doctor's Agreement that includes an Arbitration Clause. When a patient signs such an agreement he/she is waiving their right to sue the doctor, which means giving up the right to a jury trial and the guarantees of due process of law. By signing, the patient agrees to have any dispute with the doctor submitted to a binding arbitration, usually with no right of appeal. The Agreement also pre-selects the arbitrator or arbitration procedures, and the patient has no ability to change these clauses.

So far it appears that most courts are willing to enforce these Arbitration Agreements. Clearly, the doctor and the patient do not share the same bargaining position, and the doctor undoubtedly has a superior position of knowledge as to whether he/she has the skill and experience to deal with the medical issues presented by the patient. Presumably, circumstances will arise where a court will be compelled to find that these disparities have left the patient in an unacceptably vulnerable and dependent position, and the court will deem the agreement unconscionable and void. However, the courts to do not seem to be exercising a great deal of scrutiny regarding these agreements at this time, as more and more physicians and health care facilities incorporate them into their practices.

This is a silent type of so-called "tort reform" where the party in the greater financial and power position is preventing the injured party from having their "day in court." I doubt that any physicians would be willing to sign an arbitration clause with pharmaceutical companies to protect the companies if they provide bad advice or warnings about the their drugs/devices, and the doctors get sued. Arbitration clauses are usually a one-way street and they invariably compromise the position of the party in the weaker position.

Originally posted at InjuryBoard by Todd Slaughter

Before Rendering Critical Care Is It Ethical for a Physician to Insist that Patient Sign an Arbitration Clause?

Todd Slaughter — Tue, 30 Jun 2009 19:41:18 GMT

So you’ve been injured. You have some scrapes and bruises, a dislocated shoulder, perhaps a broken bone or two. We are all familiar with the process of getting those things fixed. After arriving at the hospital, we must first deal with the ceremonial paperwork. Do you have any insurance? Do you have any allergies? What medications are you currently using? Most of these questions are fairly self-explanatory and can be answered yes or no. And then, as you work your way down through the stack of paperwork, you come to what is often called a medical malpractice arbitration agreement. As this is probably less familiar, let’s take a look at what it means. Further, we will ask, and try to answer the question; can a doctor ethically deny emergency heath care to a patient who declines to sign a medical malpractice arbitration agreement?

In essence, this document asks, that in the event that the doctor harms you, that you give up your right to a jury trial. Instead, if you agree, any malpractice claim you might have will be heard by a panel of arbitrators. Arbitration is a form of non-judicial dispute resolution. Arbitrators are not judges in the legal sense and the verdict of a panel of arbitrators is binding only because you sign a contract promising to abide by it. Exactly what this panel looks like will vary from doctor to doctor and state to state. Generally however, your doctor would like any complaints against him to be heard by a panel of other doctors, not a jury of your peers.

So there you are, with your broken arm. You would probably like to get that fixed. But do you have to sacrifice your legal rights in order to get patched up? Does your physician have the right, either under the law or the code of ethics governing physicians to deny you treatment should you opt not to sign an arbitration agreement? The short answer to that question is…it depends.

Medical malpractice arbitration agreements are generally governed by the law of contracts. This means several things. First, if a court determines that the patient signing the contract was incapable of consenting to it the contract may be held to be invalid. Second, if the healthcare provider used fraud or coercion to compel the patient to sign, the contract will probably be held invalid.

However, many states have enacted statutes governing arbitration agreements in general, and medical malpractice agreements specifically. One example of such a statute comes from Utah. Utah State code, section 78B-3-421(3) states that a patient may not be denied health care on the sole basis that the patient refused to sign an arbitration agreement. Moreover, many other state courts have found these kinds of agreements to be innately coercive. In 1992, the Arizona Supreme Court held a contract invalid because it was presented to a patient as a condition of treatment and did not explicitly advise the patient that she was waiving her right to a jury trial. Broemer v. Abortion Services of Phoenix, Ltd., 840 P. 2d 1013 (Ariz., 1992).

It is almost impossible to argue that a patient seeking emergency care, in pain and afraid, is fully competent to assess the long-term legal consequences of signing documents the hospital requires. And yet, in many courts, in many different jurisdictions, these sorts of contracts have been upheld. So too, some medical ethics organizations feel it is ethical to deny a patient care if he or she declines to sign away legal rights. (see page 2, at lower right).

So, what should you, the hypothetical injured party, do as you sit, awaiting your health care? In large measure that depends on the nature of your injuries. Obviously if you need emergency care right now, you should get it. If your need is less urgent, you may wish to seek competent legal counsel to advise you prior to signing any contract.

One thing is clear however. Your legal rights regarding arbitration agreements will vary from state to state. Should you be injured by a doctor’s malpractice you should immediately seek legal advice from a medical malpractice attorney familiar with the legal climate in your jurisdiction. If you have signed an arbitration agreement, you may or may not be bound by that contract, depending on the circumstances of your particular case.

Originally posted at InjuryBoard by Todd Slaughter

California Hospital Mortality Report Wrangles Rural Nor Cal Hospital

Todd Slaughter — Wed, 28 Jan 2009 12:42:18 GMT

"We don't kill stroke patients!" That was the headline quote in the Redding Record Searchlight from Mayers Memorial Hospital CEO Katharine Ann Campbell, responding to a recent hospital mortality report published by the Office of Statewide Health Planning and Development (OSHPD). The report indicated that Mayers hospital, located in rural Fall River Mills, had 7 times the mortality rate for stroke patients than the state average. The problem, according to CEO Campbell, is that the subject patients are all still alive.

OSHPD Director Joseph Parker responded to the claimed inaccuracy by stating that each of the hospitals surveyed must "sign off" to the accuracy of the findings before they are entered into the database. CEO Campbell could not explain how the inaccuracy happened, but the Los Angeles Times reported a simiilar statistical error involving Torrance Memorial Medical Center a week ago.

While the more information we have about hospital performance, the more informed choices we can make, a report such as the one recently issued by OSHPD should be 100% accurate. Since that report issued, numerous articles, editorials and posts have been published asserting that the report can be used to guide "consumer choices" regarding hospitals. I don't agree that this report was designed for such guidance, particuarly in light of the limited medical conditions that were selected for analysis. If these claimed inaccuracies are true, however, then the OSHPD should publicize its inaccuracies and identify the source of its errors. Otherwise, the reliability of any future reports, for any purpose, will be entirely suspect.

Originally posted at InjuryBoard by Todd Slaughter

Antibacterial Wipes may Spread Drug-resistant Bacteria

Todd Slaughter — Mon, 09 Jun 2008 16:16:00 GMT

A recent study conducted at Cardiff University in Wales evaluated the efficacy of disinfectant laden wipes in the potentially bacterial infestedenvironment of an ICU of a hospital. These wipes are commonly used in households todayto clean kitchen counters, bathrooms, sinks, and the user's hands.

The study found that the wipes were very effective in killing bacterias upon contact, but that drug-resistant bacterias, such as MRSAs (methicillin resistant Staphylococcus aureus), could be left on the wipe surfaces. When the wipes were utilized more than once, these drug-resistant bacterias would transfer onto the newly "cleaned" objects. Thus, the MRSA which may have been confined to a small area could be spread to contaminate the entire suite.

Concern has been increasing in recent years that the overuse of these wipes may actually create more drug resistant bacterias. This study does not reach this issue.

Concerns have also been raised as to the effect that discarded wipes may have on killing helpful bacterias in the environment, or causing the spawn of new antibacterial resistant strains of bacteria that grow directly upon the discarded wipe.

Many more studies on these new products need to be conducted to determine what environmental and health impacts they utimatelywill have. We applaud the efforts of the team of researchsfrom Cardiff University's School of Pharmacy in their recent study.

Originally posted at InjuryBoard by Todd Slaughter