New 'Hello' In Health Care: Sign Here Not To Sue

It's not uncommon today for a woman visiting her gynecologist to give up her right to sue if something goes wrong.

The doctor simply won't treat her unless she agrees to take any potential claim to an arbitration panel rather than the courts.

The same goes for many acute-care hospitals and nursing homes, where stressed-out families with little choice are handed 60-odd pages of documents to sign. Sandwiched near the end, the mandatory-arbitration agreement gets the briefest of explanations.

Binding arbitration - not health precautions and explanations - is the new "hello" in health care. It's a physician's answer to the threat of litigation and the high cost of malpractice insurance. Like some trial lawyers who have convinced clients to sign away their constitutional rights to limited legal fees, doctors are getting patients to sign away their constitutional right to sue, too.

This troubling new practice is a barrier to the doctor-patient relationship, akin to signing a pre-nuptial agreement before getting married.

The practice is a form of blackmail: Sign it or get out.

Equality of bargaining position does not exist between a doctor and patient. There's no neutrality and no opportunity to negotiate the terms of the agreement. Mandatory arbitration may be appropriate in the context of a business relationship, but it is inappropriate in the context of health care decision-making.

Congress and the Florida Legislature should put a stop to it.

Since the 1980s, doctors and hospitals have lobbied for tort reform and limits on liability for malpractice. Today the medical profession has a new strategy: eliminating liability altogether.

It's not just the medical community pushing for immunity from mistakes made. Just read the fine print on your cell phone contract or your brokerage agreement. Still, those agreements involve a commercial transaction and the opportunity to assess whether to sign them. That's not how it works in health care, where patients are forced to give up rights not on the radar screen when they need medical care.

Even a representative of the American Arbitration Association testified before Congress last October that arbiters with his group will not handle health-care claims because patients or families under emotional duress should not be forced to sign away their rights.

"The outcomes are pre-cooked when you agree to a particular set of rules or arbiters," said Ken Connor, a movement conservative and trial lawyer who once headed the Family Research Council. Connor believes that waiving the right to a jury trial also fosters shoddy care.

He points to studies that show the arbitration process is badly skewed against consumers, at least in commercial cases. Moreover, the arbiters are not elected or appointed judges beholden to the people they serve. Rather, they are men and women, lawyers and retired judges, with a bias toward those under challenge. They want to be hired again.

There is nothing wrong with voluntary arbitration, when both parties agree on how disputes will be resolved. There's nothing contrary to public policy or unfair as long as the patient or consumer understands what he or she is giving up.

But if consumers are going to be required to sign arbitration agreements and give up their constitutional rights, they should be able to expect a minimum level of fairness from the process.

The Florida Justice Association tried last session to get a bill through the Legislature that would have added consumer protections to the arbitration process, and there is a federal bill under consideration that would get rid of arbitration agreements in health care.

These legislative efforts are important. Big business and the medical profession are essentially growing a new system of justice, and citizens deserve to know the system is not skewed before rushing headlong into it.

Arbitration has a role in our system of justice, but not in health care.