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What Is Medical Arbitration?

Physicians sometimes opt for a medical arbitration rather than face a malpractice lawsuit in court.
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  • Written By: Mary McMahon
  • Edited By: O. Wallace
  • Last Modified Date: 25 June 2014
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Medical arbitration is a process in which a doctor and patient work with a third party arbitrator to resolve a dispute. This process generally takes the form of binding arbitration, meaning that whatever the outcome is, all parties must resolve to abide by it. This form of alternative dispute resolution is most commonly seen in cases where patients would normally bring suit for malpractice, with the doctor agreeing to settle by arbitration rather than in court.

Proponents of medical arbitration argue that it can be much faster than a case in court, and that in some cases, it may favor patients. However, some complaints have been lodged against the practice. Because arbitration is regarded as private, information does not enter the public record, making it harder to track malpractice claims and other legal claims related to medical practice. The privacy also means that people in arbitration do not have access to prior cases involving the same physician, facility, or procedure if these cases were handled with arbitration.

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Medical arbitration also tends to favor the doctor or facility, because they retain an arbitrator and arbitration goes through them. This issue can be addressed by allowing both sides to hire an arbitrator, with the two agreeing on a neutral third party, or simply by insisting that the patient has the right to be involved in the decision about which arbitrator to use. Some people also fear that medical arbitration deprives patients of their rights, because agreeing to binding arbitration deprives people of the opportunity to take a case to court.

This can be an especially large problem when patients are asked to sign contractual paperwork before seeing a doctor. A patient who needs a procedure might sign the paperwork without fully reading it, or because the patient feels forced into the decision, in the process signing away the right to take the doctor to court. While patients can protest a medical arbitration clause in signed agreement, a doctor can also opt not to treat a patient who refuses to sign, arguing that if the patient fails to sign the contract, it puts the doctor at legal risk.

There are certainly cases in which medical arbitration can be an excellent way to resolve a dispute. A lawyer can provide advice for specific patients and specific cases, based on experience with similar cases in the past. Above all, people should try to avoid being forced into arbitration, as this can put them at a disadvantage.

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anon321859
Post 5

Arbitration should not be on the table for care. A doctor can refuse you. What if you need surgery? Refuse to sign and no surgery. What if it's life and death? This, to me, is just blackmail. Sign this arbitration agreement to get surgery for a serious item, or don't and forgo the surgery and possibly die.

Also, what about if you're unconscious? I've read that there is some sort of legally implied consent when you are unconscious that a hospital can use to say you agreed to their contract. Yeah, I agreed to arbitrate even though I was lying on the bed unconscious.

What if your doctor showed up to work drunk and treated you while intoxicated? This kind of item leaves a window of huge items open for which no one would be held responsible for their actions, period.

anon306971
Post 4

You know that we can solve this ourselves. If groups of us joined together and made appointments with a single doctor, that would fill up weeks of his time. Then we all refused to sign the arbitration papers when we went into the office. Then he would either lose weeks of business or be forced to allow you not to sign.

If he chooses not to force anyone to sign, then if anyone is rejected in the future for not signing, a legal case can be made for discrimination. Having an arbitrary policy of rejecting or accepting patients that don't sign opens up many legal issues.

The reasons given for medical arbitration are bull. Reduced cost? All I see is higher medical costs and more forced arbitration. We are now at a $2000 deductible to have a baby in a hospital and there was a time when many medical insurances wouldn't cover birth and the full cost is around $10,000 to $15,000.

Doctors should take a stand for their patients if the requirement is coming from somewhere else and mention they have patients who have an issue with it, but the way the doctor took it personally I think it was only an excuse to blame requirements. Look up suicide by arbitration.

Doctors should be focusing on understanding the patients' rights and protecting them. Doctors, should focus on the honoring of the Declaration of Geneva like doctors used to. Here are some relevant violations of the declaration pertaining to what my opinion dealt with. Note the declaration is not law or required, but comes from the history of what doctors were and still profess to be and what should be resurrected. Hopefully, doctors who practice the behavior I am addressing will remember their roots and become the honorable men and women they used to be.

“I will not use my medical knowledge to violate human rights and civil liberties, even under threat...” Really note this one. Taking away constitutional rights is violating human rights. Doctors should stand up for patient rights. Note even under threat of whatever is pressuring them. They are supposed to stand up for what is right, not support taking advantage of their patients by forcing arbitration. Arbitration agreements are fine. Using power to make them non optional is a rights violation.

“I will maintain by all the means in my power, the honor and the noble traditions of the medical profession.” Is the focus on money and the potential loss of so much that patient rights are violated noble?

“The health of my patient will be my first consideration.” Rejecting patients who are uncomfortable signing their rights away is best for their health? There are more general issues in society with products and recommended services but I will stay on topic in this review.

“I solemnly pledge to consecrate my life to the service of humanity.” Not just their patients.

For all those stuck in a binding arbitration they were unaware of or forced into by a doctor, note that now that a refusal to treat someone who did not sign that may help any case in the future for other patients. It now becomes not an optional agreement, but a "take it or leave it" contract where the power is one sided and forced upon you by the doctor. This is called a contract of adhesion. This is looked down upon and tends to help cases where the contracts are actually overturned. Also lack of options in the area helps the case. California tends to be generally supportive of the arbitration contracts, but there are cases where it is overturned and those circumstances help it. Contract of cohesion is one of them

I believe that if doctors reject you because you refuse to give up your constitutional rights and you end up with an unsolved issue that is negligence and not honoring the Declaration of Geneva, and if you have an issue down the line there should be some liability.

It may hold up that you can be refused in non emergency cases, but if everyone refuses you and there are no options without signing constitutional rights away and then something major happens to your health, I think something should be done about each and every one of the doctors who refused service. Doctors now are less concerned with their patients needs and concerns and it is only business to them. Every time that paper is signed in cases like this, regardless of whether you mention it or not, it is actually under duress because it is required. Otherwise your health is at risk because you are refused treatment.

This is especially the case in the emergency room or an urgent care like this one. If they refuse service, they are threatening your health by rejecting you if you don't sign. While currently federally the contracts hold up, giving up constitutional rights with other cases has been overturned many times, as it is unconstitutional, but even attempting to do so is a shady way to try and bypass the court processes and businesses need to stop it. Hopefully, this will be one of the practices overturned by the supreme court as unconstitutional eventually.

If we all follow like sheep and just sign papers put in front of us, our rights will be stepped on. If a large group of us refused to sign papers that have trying to sign your rights away and they will stop trying to force it upon us.

Each constitutional right they try to take away is a slap in the face to the consumers and will result in more and more abuse. If you end up with an untreated issue because of this, I believe that is negligence on their part because they refused to treat someone unless they followed all demands and if they don't follow any demand for all they care they can wither and die. I think that should be pressed because despite what they say alternatives are hard to come by and the way the medical system is treating people by threatening their health is ridiculous.

At the very least, every person who has an issue with their rights being taken away should lodge a complaint with the doctor, and the doctor should respectfully acknowledge the complaint, even if he does not agree and keeps the requirement. Doctors who cannot handle someone else's opinion will have problems down the line and do not see you as a person with wants, needs and opinions.

What do you think will happen if you know what is going on but he thinks he knows better and won't give proper treatment? What about if you have special needs or wants that you want the doctor to support that differ from his opinion? These doctors should not be supported.

I would say that it is hard to find a truly respectful caring doctor, and that people have lowered their expectations because of this. Even if this doctor is good enough to do base services and many times there is no conflict of opinion so there is not a huge complaint list, let's try and raise the quality of service that doctors offer by refusing to give business to this doctor. Vote with your dollars and let's not stick with good enough but let's support great, caring doctors who go back to what doctors were supposed to be: people who cared about people and truly honor the Declaration of Geneva. I have dealt with them and they are always a pleasure, so they do exist but at least from my experience, does not seem to be this doctor.

I also urge current patients to reconsider a doctor who has no understanding of someone not wishing to give up constitutional rights in order to be in good health. Find a caring doctor who honors the Declaration of Geneva. These are the people who deserve our money and respect. Put morality and caring back into the medical system and let's not support the greed and pushiness going on where the doctors think they are kings. The population's health is suffering, we need to stop suffering and take our health care back into our hands.

anon302508
Post 3

Did your consent notify you of the possible complications from the surgery? Was wound infection one of them? You have no case, or a weak on at best.

Misscoco
Post 2

@Esther11 - There's pros and cons to going for arbitration or a law suit. I would think that since your injury due to medical malpractice, wasn't life threatening or a permanent disability, maybe arbitration would be best. It would be less expensive than the court process.

But when you agree to settle by arbitration, the decision is binding and you can't take your case to court. Usually the process also goes faster than court cases.

If I was in your position, I would talk to a lawyer and see what he thinks.

Esther11
Post 1

I have a question about using arbitration or taking a medical malpractice occurrence to court. I had surgery and my doctor didn't close up the surgery opening properly. I got an infection and had to stay in the hospital an extra week and had to rest at home three weeks longer than I would have.

I lost pay because I couldn't go to work, and I had to pay extra because my insurance company didn't cover the longer stay in the hospital.

What would be the best way to handle this?

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