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

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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.