Should Doctors Insist That Their Patients Arbitrate? Should Patients Agree?

February 12, 2008


            [Image: The Turnstiles of Taipei in Xindien Station, by Shack,  June 28, 2007]

          An article posted in Sunday\’s by Inquirer Staff Writer Stacey Burling described arbitration as “a growing trend in health care.”  In particular, the article focused on the practice of some physicians and other health care providers to condition their willingness to provide services on the patient\’s signature of an agreement to arbitrate all disputes (including malpractice claims) arising out of the physician-patient relationship.  Sometimes the agreement will place limits on the nature and amount of damages that can be recovered in a malpractice action.
          One patient interviewed for the article said she could never use a physician who required such an agreement because that physician had “already set the tone” of their relationship to be one of “adversaries before we even know each other.”  I suspect this feeling may be widespread, although that says more about most people\’s assumptions concerning litigation and alternatives to litigation than anything else. 
          How would patients feel about entering a doctor\’s office for the first time and having to ask that doctor to sign a form that said something like this: “I [physician] agree that you [patient] reserve the right to hire a lawyer on a contingent fee basis to sue me in court for unlimited damages in the event you are in any way unhappy with my services, and that your claim will be decided by a small group of strangers who have no training in the law or medicine and will be final and binding upon me.”  Sets a nice tone, doesn\’t it?
          As one doctor interviewed for the article said, he started requiring an arbitration agreement as a precondition to taking on new patients to “somehow create malpractice reform for myself since it wasn\’t coming from the courts and it wasn\’t coming from the legislature.”
          If you assume that the creation of the doctor-patient relationship is a free choice for both parties, why shouldn\’t those parties be free to decide how disputes that arise in the course of their relationship will be resolved?  To be sure, there is potential for overreaching and abuse here, but nothing that can\’t be overcome.  Such agreements can\’t be forced upon patients who are in the middle of an emergent or life threatening condition; they can\’t require unreasonable venue, costs or other procedural rules; they can\’t be unclear, ambiguous or unduly complicated; they must be reciprocal;  and they must not so diminish the patient\’s substantive rights to relief as to be “unconscionable”. 
          The idea that such agreements are so inherently unfair and inconsistent with our society\’s values that they must be judicially stricken, or legislatively outlawed, rests on a  fundamental mistrust  of appropriate alternatives to courtroom litigation that has long been debunked.
          I don\’t know how I would react to my doctor requiring me to sign an arbitration agreement.  I\’d like to think I would listen to his explanation of why he wants it, I would read it, and I would make my decision as to what it says about him and our relationship.  But that would be between us.