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When Worlds Collide: First Year Lawyer talks with First Year Resident-Doctor about Arbitration Agreements

When it comes to personal injury and Arbitration Agreements, lawyers and doctors can share dramatically different views. These differences are evident in the conversation between a first year lawyer and a first year resident in general surgery.

Legal Training Is Scant: Looking at the curriculum of medical school it’s easy to see that legal training is at the bottom of the totem pole. Even a mere 3-hour course is a combination of legal requirements and medical ethics. Furthermore, even medical students and doctrs will tell you it’s a generalized course as far as legal rights, documentation, and morality are concerned.

Do doctors even understand what Arbitration Agreements really entail?

L: “So Doc, do you understand what an Arbitration Agreement is?”

D: “I think it is a sentence in a binding agreement in which it is mutually agreed upon by two parties.”

L: “Okay, but do you understand what a person/patient sacrifices when they sign an Arbitration Agreement?”

D: “Yes, I believe that I do…it means they have to abide by the agreement they signed and can’t pursue other remedies.”

L: “Kinda…but it basically keeps the patient from being able to bring a medical malpractice suit against the doctor because they are waiving their right to a jury trial.”

D: “But I would think that the patient could still sue for negligence”

L: “How so?, because medical malpractice is negligence, so the Arbitration Agreement applies.”

D: —-Silence—

Do doctors have the ability to meet full disclosure requirements when it comes to Arbitration Agreements?

L: “Moving along, what’s your view on these clauses so far then?”

D: “So far, all I know is that anything the patient signs off on I have to inform them of. Nothing gets signed off on unless there is a witness, like a nurse, resident, or attending."

L: “Well if you have to inform them, where do you get your information for explaining what it means? Does it come for the insurance company, the overseeing doctor or nurse?”

D: “That’s a good question. I am not 100% sure but I assume it’s based on hierarchy, but they are usually standard forms.”

L: “Did you know that most Arbitration Agreements are signed without the doctor present and without explanation?”

D: “As far as that is concerned, I don’t see how because I can’t do a procedure without the patient knowing everything. I don’t think that an Arbitration Agreement would hold any water b/c in the hospital it is mandatory for us to make sure the patient understands everything, even if that requires bringing in an interpreter.”

L: “Then would you say a physician’s failure to explain something is a more common occurrence in office of a primary care physician than that of a surgeon?”

D: “Ethically the patient should know, regardless of whether it’s surgery or everyday treatment by a primary care physician. But, it’s risk vs. nature of the interaction. I have more of a risk as a surgeon for medical malpractice suits.”

Are doctors willing to take a stand against mandated Arbitration Agreements?

L: “If your insurance carrier required you to have your patients sign an Arbitration Agreement before operating then would you do it?”

D: “That’s a sticky situation because if they will only ensure me if I have patients sign it then I am in a hard spot; but for surgery, if it’s the only way I can get insurance, then absolutely. I just don’t think anything good comes out of medical malpractice lawsuits.”

L: “You don’t think that the system helps ensure the right people are practicing medicine, operating, and holding their services out to the public?”

D: “No, because 90% of the time these suits are frivolous and accomplish nothing.”

L: “But if they are frivolous then wouldn’t a jury be able to determine that? Why should a person be relegated to arbitration?”

D: “Sure, 1 in every 100 suits has merit, but the jury always looks to penalize the doctor no matter what. Don’t get me wrong; I don’t think that insurance companies should require doctors to have their patients sign off on Arbitration Agreements because I think it should be between the patient and the doctor. However, there has to be a way for me to do my job without paying absurd premiums and without having to be a doctor and an attorney at the same time.”

Note from the Editor: Interesting perspectives! However, in 30 years of practice I have never seen a jury "penalize" a doctor. Rather, juries are generally protective of the doctor, the field of medicine that is practiced, and the doctor’s reputation. Also, arbitration clauses do not afford any greater protection against so-called frivilous suits than judicial proceedings. Finally, the standard of care for medical doctors is not set by attorneys, as Newt Gingrich repeatedily espouses. Rather, it is set by the doctors themselves. A doctor does not have to be a doctor and an attorney at the same time. The doctor only needs to follow the standard of care set by other similar doctors in the community.

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