Courting Justice: When You Visit The Doctor, Read The Paperwork

May 7, 2013

It’s a very common occurrence. The first time you see a doctor, the receptionist hands you various papers to sign. You figure it’s just the standard stuff…insurance information, privacy rights, contact person, etc. It’s the same drill at every doctor’s office you visit so you don’t bother to read the material. You just sign your name and wait the typical three hours until the doctor is able to see you.

Think again.

More and more, doctors are inserting arbitration clauses in the paperwork you sign. These clauses provide that you agree not to pursue any legal claims for malpractice in a court of law. Instead, you agree that if a dispute arises between you and the physician, you will arbitrate the dispute. What this means is that you and the doctor’s insurance company will together select an individual to listen to the dispute and decide whether the physician is liable for monetary compensation for negligent care.

I can’t even begin to tell you how much of a disadvantage this puts you at. If you don’t litigate your case in court, you don’t have the power of the civil justice system to ensure due process. You don’t have the civil justice system to ensure that you receive from the doctor the entire medical records necessary to prove your case. Additionally, when it comes to selecting an arbitrator, the doctor’s insurance company will not agree to anyone but a conservative attorney who is not inclined to fully compensate you for your injuries.

And it gets worse. In addition to forcing you to arbitrate any future claim, the clause also gets you to limit your non-economic damages to that magic number of $250,000 that tort reformers are always trying to ram down our throat.

God forbid, but let’s assume that a young stay at home mother of three dies as a result of malpractice. Dad works full time so it was the mom that did the cooking, cleaning, chauffeuring, homework helping, skinned-knee kissing, book reading, bed-time tucking and all the other things that moms do for their family. If she signs such an arbitration clause, the value of her life, no matter how much she does for her family, is stuck at $250,000. (Meanwhile, if the working father died as a result of malpractice and was earning $75,000 a year, his claim would be worth millions. Not fair.)

Fortunately, a good number of courts see these arbitration clauses for what they are: contracts of adhesion. A contract of adhesion is an agreement where you have no bargaining power whatsoever. In these cases, judges have declared the clause null-and-void as being against public policy.

But you cannot always bank on the court voiding the clause if a claim arises. What you can do is simply not sign the document.

Now, this is where you say, “But, Bob, if I don’t sign it, the doctor will be mad at me and won’t treat me well.” Here’s my reply, “I doubt that very much.

You see, all the forms you sign are not created by the doctor. They are supplied to him by his insurer. I wouldn’t be surprised if the doctor doesn’t even know what they say. Moreover, when you give the forms back to the receptionist, she most likely sticks them straight in the file. Nobody reads these forms unless an issue arises where they have to.

Hey, you learn something new every day.