Alternative to lawsuits
Steven L. Fries, CPO
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Title:
Alternative to lawsuits
Creator:
Steven L. Fries, CPO
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Doctors seek to head off lawsuits By <A HREF= <URL Redacted>>Lois M. Collins</A>
Deseret Morning News
When Maggie Heath visited her cardiologist recently, she was asked to
sign an arbitration agreement. Heath, a paralegal, read it, then refused. An
office manager told her if she didn't sign, after 30 days she'd no longer be
considered that physician's patient.
It's a situation more patients are encountering when they seek medical
help, even from physicians who have treated them for years.
Arbitration agreements are nothing new. But they are becoming the
medical community's response to what they say is a too-litigious society. And the
Utah Legislature last session passed a law that says physicians can refuse to
treat anyone who refuses to sign an arbitration agreement, which says you'll
settle disputes in arbitration, not the court system.
Its popularity is not limited to health care, either. If you carry a
credit card, have cable television, financed a car, bought a house or title
insurance, even had pest control done, for example, you may have agreed to
arbitration, whether you read the small print or not.
Heath rejected the agreement because she believes as it was written, it
gives away all of my rights as well as my spouse's rights for redress should
something dire happen to me as a result of a doctor's negligence, she said. I
balked. . . . I told them this was a violation of my right to due process and
that further I had no right to sign away my spouse's rights.
The medical profession, and indeed others, see it differently.
Doctors say medical malpractice premiums are rising at a rate they
can't afford. And they've had some indication that with widespread adoption (of
arbitration), there will be a positive effect on premiums, said Mark
Fotheringham, spokesman for the Utah Medical Association, which is trying to teach
members the proper way to incorporate such agreements into their practices. If the
cost of defending against malpractice claims drops, they expect their
premiums to drop, too.
Besides that, Fotheringham said, arbitration is less expensive for both
patient and physician, and it's settled much faster than a case wending
through the courts.
A medical test
Intermountain Health Care recently launched a pilot study of
arbitration in its Sandy clinic. All patients, through October, will be asked to sign an
arbitration agreement, said Harlan Hammond, assistant vice president for risk
management services. Then we will sit down and discuss what we learned from
it. We want to see how patients respond when asked to sign an agreement and
learn from the questions they ask, the concerns they raise, reassess the form
prepared for the purpose and our informational services.
Then IHC will decide whether and to what extent it would then migrate
into the hospitals.
The state's hospital association favors arbitration. And
representatives from various health systems and hospitals have a task force to look at how
best to approach arbitration, Hammond said.
Utah's medical arbitration employs a panel of three, one an individual
selected by the physician, one by the patient and the third an attorney who
has been trained and certified in arbitration by the state. Many nonmedical
companies, like credit card issuers, use a professional arbitration group like the
American Arbitration Association.
Fotheringham said some doctors were initially nervous they'd offend
patients by asking them to sign the forms. Most have found patients very
accepting, he said.
Preferred option
Elliott Williams of the law firm Williams & Hunt has a long history
with arbitration. He's both a certified arbitration attorney and general counsel
for the Utah Medical Insurance Association, the medical community's
not-for-profit self-insurance company. The Supreme Court has for years advocated the
position that arbitration is a preferred way of resolving disputes, he said.
Even malpractice attorneys employ arbitration agreements in case of fee
disputes, he added.
It saves both sides time and expense. It's also much less stressful.
Arbitration hearings are usually concluded in one day in the conference room in
our office, as opposed to a case that takes more than a week to try with a
jury, he said. Experts can testify in person or by phone. It's much less
confrontational, much less stressful. And proceedings are confidential.
Medical malpractice settlements are typically confidential, as well, he
said. Like them, the results of arbitration are available to credentialing
agencies, so it's not hidden from those who need to know in terms of protecting
the public, though the public itself may not know, he added.
He hails it as a more impartial process because both sides pick a
representative, and they agree on the arbitrator who presides. You may know nothing
about the backgrounds and inclinations of a jury, he said. But you know
something about the arbitrator.
'Long-term fairness'
The confidentiality aspect is just one of the reasons why attorney
Francis J. Carney of Anderson & Karrenberg, who also serves on such panels, admits
he has very mixed feelings about arbitration. Secrecy destroys democracy,
he said, citing a major medical malpractice case he defended against an HMO a
decade ago. The public had a legitimate interest in knowing if the
organization was limiting care to save costs, he said. Under arbitration, it would have
been secret.
This happens just at a time when judges around the country are
questioning backroom deals in settlement agreements to keep corporate dirt from
coming into the open. Now the medical insurance industry wants to head back the
other way, he said.
Still, Carney said he has found arbitration panels fair and slightly,
though not substantially, cheaper for the parties. But I do have concerns
about the long-term fairness.
Patients who seek arbitration must pay half the hourly costs of the
three arbitrators, usually about $700 an hour for the three. It can add up, he
said.
He worries about the problem of the repeat neutral arbitrator who
depends on referrals to earn a living. A patient will use an arbitrator once in
a lifetime, while a health-care network or insurer may hire the same
arbitrator again and again. Do you think that they will consent to an arbitrator if
that arbitrator has ordered substantial damages against them? He'd prefer the
neutral arbitrator were selected from an approved panel without the right of
veto by the malpractice insurance companies.
And he said that the American Arbitration Association has abolished
arbitration in medical malpractice actions unless the patient agrees to it after
being injured. Pre-injury agreements have been determined by the AAA to be
fundamentally unfair.
A matter of appeal
Critics of arbitration also lament that the grounds for appeal are
extremely limited. The most likely would be showing a conflict on the part of the
third, neutral arbitrator, arbitration champion Williams said.
It's that lack of appeal that makes the whole thing unappealing to
Heath. I've never considered suing a doctor, she said. But I feel like if they
do something wrong that harms me, I ought to have that right. I don't have any
problem with mediation, but if it can't get settled there, you should have
the right to take it to court.
Nationally, arbitration results in more rewards than jury cases do, but
they are typically smaller, Williams said. It's too soon to tell if that will
be the case in Utah.
Utah arbitration offers the option of separating issues of liability
from those of damage. Damage is settled last through either mediation or
negotiation.
There's no legislated cap on an arbitration award, but the medical
establishment hopes arbitration will avoid excessive awards juries sometimes give.
It doesn't limit recovery, but hopefully arbitration panels have more
expertise in the area they are asked to judge, Williams said.
The Utah Medical Insurance Association plans to give a discount on
malpractice premiums to physicians who offer arbitration, though it will not
require them to force patients to sign.
In the end, because she has a heart condition and needed treatment,
Heath signed the arbitration agreement.
E-MAIL: <A HREF=mailto:<Email Address Redacted>> <Email Address Redacted> </A>
Deseret Morning News
When Maggie Heath visited her cardiologist recently, she was asked to
sign an arbitration agreement. Heath, a paralegal, read it, then refused. An
office manager told her if she didn't sign, after 30 days she'd no longer be
considered that physician's patient.
It's a situation more patients are encountering when they seek medical
help, even from physicians who have treated them for years.
Arbitration agreements are nothing new. But they are becoming the
medical community's response to what they say is a too-litigious society. And the
Utah Legislature last session passed a law that says physicians can refuse to
treat anyone who refuses to sign an arbitration agreement, which says you'll
settle disputes in arbitration, not the court system.
Its popularity is not limited to health care, either. If you carry a
credit card, have cable television, financed a car, bought a house or title
insurance, even had pest control done, for example, you may have agreed to
arbitration, whether you read the small print or not.
Heath rejected the agreement because she believes as it was written, it
gives away all of my rights as well as my spouse's rights for redress should
something dire happen to me as a result of a doctor's negligence, she said. I
balked. . . . I told them this was a violation of my right to due process and
that further I had no right to sign away my spouse's rights.
The medical profession, and indeed others, see it differently.
Doctors say medical malpractice premiums are rising at a rate they
can't afford. And they've had some indication that with widespread adoption (of
arbitration), there will be a positive effect on premiums, said Mark
Fotheringham, spokesman for the Utah Medical Association, which is trying to teach
members the proper way to incorporate such agreements into their practices. If the
cost of defending against malpractice claims drops, they expect their
premiums to drop, too.
Besides that, Fotheringham said, arbitration is less expensive for both
patient and physician, and it's settled much faster than a case wending
through the courts.
A medical test
Intermountain Health Care recently launched a pilot study of
arbitration in its Sandy clinic. All patients, through October, will be asked to sign an
arbitration agreement, said Harlan Hammond, assistant vice president for risk
management services. Then we will sit down and discuss what we learned from
it. We want to see how patients respond when asked to sign an agreement and
learn from the questions they ask, the concerns they raise, reassess the form
prepared for the purpose and our informational services.
Then IHC will decide whether and to what extent it would then migrate
into the hospitals.
The state's hospital association favors arbitration. And
representatives from various health systems and hospitals have a task force to look at how
best to approach arbitration, Hammond said.
Utah's medical arbitration employs a panel of three, one an individual
selected by the physician, one by the patient and the third an attorney who
has been trained and certified in arbitration by the state. Many nonmedical
companies, like credit card issuers, use a professional arbitration group like the
American Arbitration Association.
Fotheringham said some doctors were initially nervous they'd offend
patients by asking them to sign the forms. Most have found patients very
accepting, he said.
Preferred option
Elliott Williams of the law firm Williams & Hunt has a long history
with arbitration. He's both a certified arbitration attorney and general counsel
for the Utah Medical Insurance Association, the medical community's
not-for-profit self-insurance company. The Supreme Court has for years advocated the
position that arbitration is a preferred way of resolving disputes, he said.
Even malpractice attorneys employ arbitration agreements in case of fee
disputes, he added.
It saves both sides time and expense. It's also much less stressful.
Arbitration hearings are usually concluded in one day in the conference room in
our office, as opposed to a case that takes more than a week to try with a
jury, he said. Experts can testify in person or by phone. It's much less
confrontational, much less stressful. And proceedings are confidential.
Medical malpractice settlements are typically confidential, as well, he
said. Like them, the results of arbitration are available to credentialing
agencies, so it's not hidden from those who need to know in terms of protecting
the public, though the public itself may not know, he added.
He hails it as a more impartial process because both sides pick a
representative, and they agree on the arbitrator who presides. You may know nothing
about the backgrounds and inclinations of a jury, he said. But you know
something about the arbitrator.
'Long-term fairness'
The confidentiality aspect is just one of the reasons why attorney
Francis J. Carney of Anderson & Karrenberg, who also serves on such panels, admits
he has very mixed feelings about arbitration. Secrecy destroys democracy,
he said, citing a major medical malpractice case he defended against an HMO a
decade ago. The public had a legitimate interest in knowing if the
organization was limiting care to save costs, he said. Under arbitration, it would have
been secret.
This happens just at a time when judges around the country are
questioning backroom deals in settlement agreements to keep corporate dirt from
coming into the open. Now the medical insurance industry wants to head back the
other way, he said.
Still, Carney said he has found arbitration panels fair and slightly,
though not substantially, cheaper for the parties. But I do have concerns
about the long-term fairness.
Patients who seek arbitration must pay half the hourly costs of the
three arbitrators, usually about $700 an hour for the three. It can add up, he
said.
He worries about the problem of the repeat neutral arbitrator who
depends on referrals to earn a living. A patient will use an arbitrator once in
a lifetime, while a health-care network or insurer may hire the same
arbitrator again and again. Do you think that they will consent to an arbitrator if
that arbitrator has ordered substantial damages against them? He'd prefer the
neutral arbitrator were selected from an approved panel without the right of
veto by the malpractice insurance companies.
And he said that the American Arbitration Association has abolished
arbitration in medical malpractice actions unless the patient agrees to it after
being injured. Pre-injury agreements have been determined by the AAA to be
fundamentally unfair.
A matter of appeal
Critics of arbitration also lament that the grounds for appeal are
extremely limited. The most likely would be showing a conflict on the part of the
third, neutral arbitrator, arbitration champion Williams said.
It's that lack of appeal that makes the whole thing unappealing to
Heath. I've never considered suing a doctor, she said. But I feel like if they
do something wrong that harms me, I ought to have that right. I don't have any
problem with mediation, but if it can't get settled there, you should have
the right to take it to court.
Nationally, arbitration results in more rewards than jury cases do, but
they are typically smaller, Williams said. It's too soon to tell if that will
be the case in Utah.
Utah arbitration offers the option of separating issues of liability
from those of damage. Damage is settled last through either mediation or
negotiation.
There's no legislated cap on an arbitration award, but the medical
establishment hopes arbitration will avoid excessive awards juries sometimes give.
It doesn't limit recovery, but hopefully arbitration panels have more
expertise in the area they are asked to judge, Williams said.
The Utah Medical Insurance Association plans to give a discount on
malpractice premiums to physicians who offer arbitration, though it will not
require them to force patients to sign.
In the end, because she has a heart condition and needed treatment,
Heath signed the arbitration agreement.
E-MAIL: <A HREF=mailto:<Email Address Redacted>> <Email Address Redacted> </A>
Citation
Steven L. Fries, CPO, “Alternative to lawsuits,” Digital Resource Foundation for Orthotics and Prosthetics, accessed November 1, 2024, https://library.drfop.org/items/show/221872.
