Arbitration is an answer

On the contrary, Fidel. Attorneys would still retrieve costs and fees )including contigency fees, out of an arbitration settlement. That was a fatuous assertion to make and shows you don’t really know what you are talking about.

And in arbitration proceedings, patients would need skilled advocacy indeed, especially should they enter into a binding arbitration.

There is no do-over, no check on the mistakes of an arbitrator, even mathematical mistakes, unless said mistakes occur on the face of the arbitration award document.

Binding arbitration has advantages in some situations, for either party…but it has a significant downsides, for both parties.

One should be loath to sign away rights to sue or defend BEFORE an alleged injury. After the fact, it might or might not be a prudent option.

Our policy is to firmly insist on an arbitration agreement with 100% of our patients, per the strong recommendation of our carrier, CAP-MPT. Every year, I encounter 3 or 4 patients who do not agree with that policy, at first anyway. I will then sit down with them and respectfully discuss our logic and good rationale for this policy. All of them so far (even lawyers) eventually agreed. I have yet to have a potential patient leave because of refusal to agree to arbitration. For what it’s worth, coincidence or no, in 11 years of practice, I have never been named in a lawsuit, although I am not in denial and I realize that it could just be a matter of time before the odds catch up. I have been involved reviewing cases (for both sides) and doing expert testimony and I acknowledge that while there does truly exist bad medicine being practiced, a lot of the cases being dragged through the courts are due to lawyers looking to earn a living off of bad outcomes that were not the result of any mismanagement.

As a patient, it is your right not to agree to arbitration. As a physician, it is your right not to leave yourself vulnerable to an unfair system. If patient and doctor cannot come to an agreement, then said patient will find another doctor and said doctor will find other patients. Everyone shakes hand and everything is fair. I won’t force patients into something they don’t agree with and I will protect myself and say no if patients try to force me into something that I don’t agree with. Can’t we all just get along? =)

Binding arbitration is, well, binding. No appeals. It’s a very closed system and I can see physicians becoming very unhappy with it if it becomes more widespread. So be careful what you wish for.

The real issue, according to the article that’s linked here, is whether patients can be asked to sign away their options *before* any kind of tort actually occurs. Before seeing the doctor, even.

As a patient, there is no way I would sign this kind of contract. There is no way I would ever agree to tie my hands like this, sight unseen. And I would not want to be a patient of someone who automatically sees me as a potential enemy the minute I walk in the door.

If the shoe were on the other foot and physicians were expected to sign this kind of agreement before entering into any contract – with a third-party payer, for instance – we would hear the screaming all the way to the other side of the solar system.

There are civil ways to settle disagreements. There are civil ways of compensating patients who have been injured. Arbitration is hardly the only option on the table.

I have a sneaking suspicion, however, that most physicians really don’t care about being fair to their patients. They just want a system that favors *them* 100 percent of the time.