A patient in Florida finds that all OBs require signing away their right to sue. Again, patients lose in today’s malpractice climate:
The gynecologist I’ve seen for seven years has begun requiring patients to waive their right to a day in court and to accept binding arbitration to settle any potential disputes, or she will not treat them. I sought care elsewhere but discovered that nearly all ob-gyn practices in the area make the same demand.
Related posts:
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- Will Sanjay Gupta stand up to the lobbyists as Surgeon General?
- "United States functions as Canada’s back-up medical system"
- Arbitration is an answer
- Things gynecologists say
- Sweden has banned the practice of women patients requesting female gynecologists
- When doctors cherry pick
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{ 27 comments }
They can choose to SUE doctors or HAVE doctors. They can always go to one of the state-run University centers, though last time I checked, they limit their liability as well, as a state entity.
Kevin’s right – patients will lose if they sign arbitration agreements.
Doctors aren’t going anywhere.
Lots of businesses have arbitration mandates in their contracts, ESPECIALLY commonly in the the lawyer industry.
The NY Times article is beyond holier-than-thou flaming, nauseating hypocrisy. I guarantee you the the Times has arbitration clauses in many of its contracts these days.
Doctors … Bullies? I say Bully for the Doctors.
I think Cohen has it wrong here. The premise that there is an inviolable “right” to have one’s day in court is simply not true. Unless he wants to claim that all such waivers of trial by jury and requirements to accept arbitration of disputes are unethical, a case I don’t see him making, then this doctor is doing no worse and nothing different than utility companies, cell-phone providers, employers or anyone else that places conditions on how disputes are to be adjudicated. I don’t see how anyone is being forced to accept this particular doctor’s terms. No requirement exists that holds that every doctor has to offer the same terms of business, the same level of service or the same accessibility and convenience as all others. Consider that arbitration agreements may be a necessary tradeoff for service in a high-cost or high-liability area. If that isn’t your cup of tea, then travel to find services on different terms might be necessary.
Anonymous : 6:18 PM
I agree with you. Also note many issues that Cohen glibly fails to address:
First, this is the corrupt judicial hellhole of Florida, where liablity insurance is often not available at any price. This is especially the case for jackpot justice gold mines like OB, emergency trauma care and neurosurgery.
Second, Cohen believes that the current out of control John Edwards phony litigation system is a God-given right. It didn’t exist in the USA until the 1960s, and it does not exist in the rest of the civilized world. The contingency fee scam is of very recent historical origin.
Where is Pope Randy Cohen’s concern for the complete lack of ethics in the US lawyer industry?
“United, gynelogists stand” — a telling title. What other industry (besides medicine) would all of a market’s producers decide unilaterally to institute an anti-consumer policy that robs people of their rights?
First, antitrust law suits.
Second, let’s go back to Milton Friedman and eliminate the medical guild monopoly, eliminate all credentialling
What is Cohen’s authority. Just one man’s opinion. The doctor’s wouldn’t do this if they didn’t find themselves in a hostile legal climate. They don’t do this in large numbers most places. He says they are restricting access to care for people in that area who don’t want those terms? Wouldn’t access to care be more restricted if they didn’t do what they had to do in order to remain in practice there? Suppose they just move to a less litigious area in droves–where does this leave this patient?
I think most doctors probably don’t really have much faith in the legal protection that such agreements offer–but use them specifically to send this very sort of patient down the street somewhere else. If someone is going around shopping for the doctor who offers maximal opportunity for maximal recovery in the event of a malpractice that hasn’t occurred, then I would tend to think that they are a pretty litigious person who is going to assume that any undesired event is malpractice and sue.
I don’t want to be the doctor who fills that market niche.
Anti-trust laws dont apply unless you can prove that the doctors are cooperating and communicating with each other to set up these non-lawsuit clauses.
“ESPECIALLY commonly in the the lawyer industry.”
This is not even remotely true.
“Where is Pope Randy Cohen’s concern for the complete lack of ethics in the US lawyer industry?”
Perhaps if your own house was in order people might care more about your thoughts on everyone else’s?
“The doctor’s wouldn’t do this if they didn’t find themselves in a hostile legal climate.”
If only every industry could have the physicians’ success at trial and still whine about the “hostile comment”.
“Wouldn’t access to care be more restricted if they didn’t do what they had to do in order to remain in practice there?”
How does this enable them to remain in practice? What evidence of savings is there?
“If only every industry could have the physicians’ success at trial…”
I’m glad you recognize the physician’s success at trial. That being said, why do you see a trial as more beneficial? Patients come out ahead in arbitration, with little in the way of legal expenses. Now who would benefit from legal expenses? Oh, right…
Legal expenses benefit neither party in the suit, it only benefits the lawyers, who will stretch out a case to try to exhaust the parties. Classic strategy, and in my opinion, wholly immoral. Justice delayed is justice denied, and all that. But it does pay well.
The California Bar Association recommends Lawyers enter into binding arbitration with their clients and a ethical ordinary procedure.
“Fee arbitration offers cheaper, faster alternative to litigation.”
This is a quote from the California Bar Journal, the “Official Publication of the State Bar of California.”
Fee arbitration between lawyers and clients is recommended by the California Bar, saying that arbitrators are reporting that their work “gives people immediate results, unlike protracted litigation.”
“That being said, why do you see a trial as more beneficial? Patients come out ahead in arbitration, with little in the way of legal expenses.”
How so? Will physicians not still be needed to testify? Will lawyers not still be utilized to present evidence? Will discovery still not be necessary? If you’re severely injured, are you going to put your case on yourself?
“Legal expenses benefit neither party in the suit, it only benefits the lawyers, who will stretch out a case to try to exhaust the parties.”
Perhaps if you’re paying by the hour, but most med mal plaintiffs aren’t. And most insurance companies don’t let the attorneys who work for them gouge them anymore than the health insurers let physicians gouge them.
So where do all these savings come from?
“Fee arbitration between lawyers and clients is recommended by the California Bar, saying that arbitrators are reporting that their work “gives people immediate results, unlike protracted litigation.””
That’s an option for clients if they choose it – they don’t contract their rights to a jury away BEFORE they hire the attorney. Big difference.
“That’s an option for clients if they choose it – they don’t contract their rights to a jury away BEFORE they hire the attorney. Big difference.”
Not if the lawyer or other entity gives no choice in the matter, as is almost always the case, as you well know.
Try opening a brokerage investment account without signing an arbitration agreement.
“most insurance companies don’t let the attorneys who work for them gouge them anymore than the health insurers let physicians gouge them.”
Quite true, but it doesn’t speak to the issue of delay, does it? Rhetorical question: does an insurance company see it as worthwhile to stall, and hope the patient goes and away or dies, rather than paying an award? So legal fees mount, but the the insurance company doesn’t feel gouged, because it’s an economical way of doing business for them. Doesn’t do much for the doctor, who has usually hired his own lawyer, and certainly doesn’t do much for a patient either.
Now the patient’s lawyer will also keep on stringing out the process as long as he can, especially if it’s a weak case, in the hope that he can annoy insurance company and doctor enough that they’ll pay him to go away. After all, he’s got to look like he’s earning that 33-50% share of the patient’s award.
So let’s recap: patient’s lawyer benefits from prolonged legal action, so does the insurance company. Doctor and patient are still not getting anything out of it, and lawyers are not working for free. Remember the phrase, “Time is money”? You think a 50% share of the patients settlement will be forthcoming in binding arbitration? It’s a less rigorous process, thus it doesn’t pay as well for the lawyers. Nice try, but binding arbitration is cheaper. Let me help you with a source, you seem to need it.
“Litigants will always have to evaluate the central question of whether arbitration produces better results than litigation. But even if litigation is thought to produce lower indemnity awards or more defense verdicts, the cost of producing those results, when combined with the results themselves, may be greater than the total cost and result of the arbitration.”
http://findarticles.com/p/articles/mi_qa3968/is_200107/ai_n8990434
Tell me this; why are you against binding arbitration, when the legal profession seems to find it useful?
Do you really not understand the difference between signing an arbitration agreement up front before the dispute has arisen and choosing to arbitrate after?
The patients DO have a choice. Obstetricians do not have a monopoly. They can go see midwives.
Heck, they can have a lawyer deliver their baby. No sympathy. They want to be able to sue for tens of millions of dollars. The doctors have all, independently, chosen to require arbitration for good reason.
Seems nobody wants to voluntarily put their head on the malpractice chopping block. They don’t want to risk a career-ending, bankrupting lawsuit.
So yes, it seems the doctors “aren’t going anywhere”. What they do is they choose to arrange their lives in such a way that they can take the big target off their back. So patients who want certain high-risk services (obstetrics, neurosurgical trauma), find there are plenty of obstetricians willing to do GYN surgery, plenty of neurosurgeons willing to do elective spine surgery, but good luck finding obstetrical or trauma coverage.
Actually, most states (thanks to the ceaseless lobbing by doctor groups) limit the role midwives can play, requiring doctor supervision. Doctors have a lot of market power. Don’t lie.
Obstetricians’ mistakes can be costly; they can ruin an entire life and place a tremendous on a family for decades. We, as Americans, should be free to seek redress in the Courts.
If obstetricians demand arbitration, we as citizens should demand that they surrender their credentials and forbid them from practicing medicine.
As for yr fear of a dr. shortage, another lie. We’ll just let in a few more Indian docs. They appreciate our country and its freedoms.
“does an insurance company see it as worthwhile to stall, and hope the patient goes and away or dies, rather than paying an award? So legal fees mount, but the the insurance company doesn’t feel gouged, because it’s an economical way of doing business for them.”
If the patient dies, his estate retains the claim, so that’s not really a savings.
Yet no one is proposing to move cases any faster. You still have to prepare a case for arbitration just like you would trial. And an insurer can just as easily delay arbitration.
“in the hope that he can annoy insurance company and doctor enough that they’ll pay him to go away.”
If you think this is true, I have to ask – how many cases have you settled with an insurer? And if the plaintiff’s costs are going up, his ability to settle cheaply declines.
“You think a 50% share of the patients settlement will be forthcoming in binding arbitration? It’s a less rigorous process, thus it doesn’t pay as well for the lawyers.”
The arbitrator doesn’t get to determine the attorney’s contract with the patient. I also have to ask – how many arbitrations have you been involved in?
You should probably stop opining on things you have literally no experience with.
“The doctors have all, independently, chosen to require arbitration for good reason.”
The doctors have no clue. Few, if any of them, have ever taken any kind of in depth study on how to minimize their risk. Few, if any, have any idea how insurance rates are set. So to say they have chosen it for a “good reason” would mean that these doctors are far removed from the norm. And the article certainly doesn’t offer any evidence to that claim.
How many doctors have ever been bankrupted by a lawsuit? And what was the basis of that claim?
Are facts a part of any of your opinions?
“As for yr fear of a dr. shortage, another lie. We’ll just let in a few more Indian docs. They appreciate our country and its freedoms.”
Spoken by someone who has never waited days to weeks to see a PCP (or goes to the ER for non emergent issues). Thanks but you can take your Dr R S Sharma from the University of Bangalore without a minute of US hospital training. Most Americans would not.
>>How many doctors have ever been bankrupted by a lawsuit? And what was the basis of that claim?
Still waiting for that indemnity CJD.
Until then, it’s the doctors who take the risk, it’s the doctors who have the right to do what they feel is necessary to minimize the risk to their lives and their family.
They have a choice in Florida. Be able to HAVE doctors or SUE doctors. You can let in all the Indian docs you want. They’ll be handing patients the same arbitration agreements.
The doctors take risk management courses constantly. They’re required by many malpractice insurers. Professional courses offer them as part of CME. Some states require them for licensure.
And midwives can, and do, practice independently in my state. Of course, what that means is when they get in trouble the patient is sent emergently to a doctor.
One wonders why ther is an utter inability to demonstrate that arbitration is either unfair or uneconomical. Surely you can demonstrate that arbitration agreements are unjust? Any source would be appreciated, as I’d like to inform myself on both sides of this issue.
“Until then, it’s the doctors who take the risk, it’s the doctors who have the right to do what they feel is necessary to minimize the risk to their lives and their family.”
A risk no different than anyone else who is performing a job, or even driving a car.
The only difference is the incredible arrogance of physicians.
If you all take risk management courses constantly, how come none of you know that the key is simply treating your patients more politely?
Did you channel that CJD?
Well fine, the patients will be treated more politely. Oh, and in Florida they will be signing arbitration agreements.
Even if one were to accept the idiotic idea that a physician practicing medicine faces no more liability risk than a salaried employee of a restaurant, or a business clerk, the fact remains that the obstetricians in Florida insist on arbitration as a condition of entering the voluntary physician-patient relationship.
You don’t like it, deliver your baby elsewhere.
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