A recent issue of Lawyers’ Weekly has an article that discusses the trend of some doctors requiring patients to contractually limit their rights to bring medical malpractice claims before the doctors will provide medical service. The agreements at issue would require patients to agree to arbitrate their claims and agree to limit their claims to $250,000.00.
Aside from our general opposition to pre-claim arbitration clauses, we have several concerns about such agreements. First, this experiment has been tried and failed. In 1999, the Utah legislature passed a law allowing doctors to use arbitration agreements; it was amended in 2003 to let doctors turn away patients who refused to sign them, although it made an exception for emergency treatment. That law was repealed in 2004; now, health care providers can use these agreements, but they can’t deny treatment because the patient won’t sign.
Moreover, such agreements promote secrecy. Unlike lawsuits, records of when an arbitration was filed and the eventual results are not public records. It is important to potential patients and to state regulatory bodies that they know which doctors are “repeat offenders” in the medical malpractice arena.
Finally, we question whether this is the proper way to start a doctor-patient relationship. Study after study finds that the most important factor in whether a patient asserts a medical malpractice claim is how the patient and his or her family is treated by the provider. Even when things go bad, a patient is hesitant to sue a doctor he or she likes. It seems that starting a relationship off on this foot (or worse, having a patient get extremely upset after the fact when they first realize they signed the agreement) might lead to an increase in claims.
While the trend is interesting, we’re not aware of any Austin physicians yet requiring such agreements, and we have real questions about whether they could be valid under Texas law.
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