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There is an increasing trend in the medical community to have patients sign off on a Doctor’s Agreement that includes an Arbitration Clause. When a patient signs such an agreement he/she is waiving their right to sue the doctor, which means giving up the right to a jury trial and the guarantees of due process of law. By signing, the patient agrees to have any dispute with the doctor submitted to a binding arbitration, usually with no right of appeal. The Agreement also pre-selects the arbitrator or arbitration procedures, and the patient has no ability to change these clauses.

So far it appears that most courts are willing to enforce these Arbitration Agreements. Clearly, the doctor and the patient do not share the same bargaining position, and the doctor undoubtedly has a superior position of knowledge as to whether he/she has the skill and experience to deal with the medical issues presented by the patient. Presumably, circumstances will arise where a court will be compelled to find that these disparities have left the patient in an unacceptably vulnerable and dependent position, and the court will deem the agreement unconscionable and void. However, the courts to do not seem to be exercising a great deal of scrutiny regarding these agreements at this time, as more and more physicians and health care facilities incorporate them into their practices.

This is a silent type of so-called "tort reform" where the party in the greater financial and power position is preventing the injured party from having their "day in court." I doubt that any physicians would be willing to sign an arbitration clause with pharmaceutical companies to protect the companies if they provide bad advice or warnings about the their drugs/devices, and the doctors get sued. Arbitration clauses are usually a one-way street and they invariably compromise the position of the party in the weaker position.

One Comment

  1. Gravatar for Mike Bryant

    This will be needed to be watched closely for it's results. I wonder if people with smaller claims might not like this system. But, as you say it does rob people of their day in court and it all depends on who makes the decisions.

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