Doctors can refuse to see patients who object to signing an Arbitration Clause. However, if the situation is a medical emergency the doctor cannot ethically refuse treatment where the patient will not agree to the clause. The American Medical Association (AMA) Principles of Medical Ethics states: “A physician shall, in the provision of appropriate patient care, except in emergencies, be free to choose whom to serve, with whom to associate….”. American Medical Association, Principles of Medical Ethics, 2001, available at http://www.ama-assn.org/ama/pub/physician-resources/medical-ethics/code-medical-ethics/principles-medical-ethics.shtml. Yet, other principles within the same canon are directly adverse to the argument that a doctor can refuse to treat patients not presenting an emergency and who refuse to sign an Arbitration Agreement. The following principles from the AMA canon are relevant to this analysis:
“A physician shall support access to medical care for all people”. Id.
“A physician shall respect the law and also recognize a responsibility to seek changes in those requirements which are contrary to the best interests of the patient”. Id.
With regards to the first section, requiring patients to sign an Arbitration Agreement certainly conflicts with the concept of open access to medical care. These agreements close access; they limit medical care to only those that agree to relinquish certain constitutionally guaranteed rights. As more and more providers demand arbitration clauses in their service agreements, patients unwilling to sacrifice their legal rights have fewer and fewer providers available to them.
Concerning the second principle, requiring patients to give up legal rights before offering treatment reflects an aversion to, rather than a respect for, the law. This canon also imposes a responsibility upon the doctor to seek changes in the law if necessary to preserve the "best interests of the patient." This is intuitively contrary to a doctor’s efforts to change his legal relationship with his patient by requiring mandatory arbitration agreement that lessens the patient’s rights. Of course, doctors have argued that lower malpractice premiums serve the interest of the patient by keeping medical costs down. However, these minor cost savings are of small solace to the patient that suffers serious injury or death from the physician’s malpractice. For that patient or the loved ones, the loss of the full remedies recognized by law is monumental in comparison.
It is important to note that the AMA principles are not laws themselves and only serve as standards of conduct. They guide physician behavior rather than govern it. In light of the increasing number of physicians and medical providers that are incorporating arbitration clauses into their service agreements, greater ethical guidance is needed from the AMA. Otherwise we may be vexed with a loss of physician accountability combined with a continually decreasing level of care.