Need Something as Common as Cataract Surgery? Better Talk to a Lawyer, First.

Anybody who watches late-night TV has probably seen more than their share of ads from personal injury lawyers looking for new clients. They usually specify people harmed by defective medical devices, medication side effects, or been on the receiving end of a botched procedure. You may also have read or heard complaints from doctors that outrageous monetary damages paid out for dubious medical claims is pushing malpractice insurance rates into the stratosphere. Calls for tort reform to address these issues have mostly floundered in Congress and state legislatures, which, not surprisingly, are heavily populated by lawyers. Still, don’t write off the legal profession just yet. After all, you may need to seek legal counsel before your next medical procedure or treatment.

Let’s say you have a common medical condition like cataracts, and your vision is deteriorating. After a thorough exam,  your ophthalmologist recommends surgery to replace the clouded lenses. The doctor’s staff prepares a stack of papers for your review and signature. Most of it is pretty mundane, mostly boilerplate language re permission to treat, financial responsibility, and pre- and post-operative care. One page, though, catches your eye. It’s a form stipulating your agreement to submit to arbitration rather than turn to the courts if something goes wrong and you’re significantly harmed. The form clearly states that patients may refuse to sign the arbitration agreement, but the staff member says the doctor will not perform the procedure without a signed copy on file. A check of the local statutes re medical arbitration confirms that the law, known in the Show Me state as the ‘Missouri Health Care Arbitration Act’, permits doctors and hospitals to refuse to provide non-emergency care if no arbitration agreement has been signed by the patient.  You begin to wonder if a doctor who compels you to preemptively provide him/her with immunity from the courts is someone you want to entrust with your eyesight.

The Missouri statute was part of tort reform legislation originally approved in 2005. It was aimed at preventing outlandish financial payouts to claimants who had shopped around for a friendly jury in a county known to be wildly generous with someone else’s money. Other states have enacted similar laws, which typically assign a small panel of arbitrators to review and settle claims. Court cases from around the country have mostly upheld the binding decisions of the panels unless the injured party can demonstrate they were never fully informed of the arbitration process.

While protecting doctors from outlandish claims may be an admirable goal, demanding that patients agree to limit their rights even before any treatment takes place is misguided and counter-productive. Perhaps most concerning is the impression on patients, who see such demands as a worrying sign that the doctor in whom they are placing their very life is not confident in their own abilities. Reading the required language contained in the arbitration agreement form can add to the patient’s unease.

The patient is compelled to accept arbitration even in the event of malpractice or negligence. How can an individual agree to a specified outcome that may, or may not, ever happen? How does a patient agree to such restrictions on their rights before knowing the severity of injury or mistake?  And what happens to the doctor-patient relationship when the patient sees the agreement as  surrendering their rights in order to safeguard the doctor’s bank account, practice, or reputation?

Why not an offer of arbitration only after actual harm has occured? Or, stipulate that prior agreement to arbitration applies only in cases where the injury is not permanently disabling, and the cause is not related to incompetence or negligence. If both parties wish to avoid the cost and complexity of court proceedings in those instances, voluntary arbitration can offer a viable alternative. For those who have suffered grievous harm, especially at the hands of an incompetent or negligent practitioner, however, the courts may well be the best vehicle to both compensate victims, and prevent new victims being harmed in the future.

As regards medical malpractice lawsuits, reform has been a hot-button issue for both doctors and lawyers for some time. Certain counties across the country are known for producing juries who hand out huge settlements. This phenomenon has driven up the cost of malpractice insurance to the point that some specialties face fewer practitioners in the future. Some doctors have relocated their practices to states with a more sane legal environment. Unfortunately, the patient is now trapped in the middle of the argument, and is quickly becoming a casualty of the medical and legal fields’ inability to find a proper solution.

Raymond T Kyle

Kyle Policy Partners                      Copyright 2018