Physicians Requiring Patients to Sign Arbitration Agreements Before They Will Treat Them
You may have heard of the so-called “medical malpractice crisis” in Pennsylvania. This is the belief that, as a result of too many frivolous medical malpractice lawsuits being filed, which physicians and their insurance companies have to defend, medical liability insurance carriers have increased insurance premiums to the point where practicing medicine in Pennsylvania is becoming cost-prohibitive for physicians. As an apparent self-help solution, some physicians have begun requiring patients to sign arbitration agreements before they will agree to treat them. These agreements vary but, in essence, they stipulate that, should the patient believe they are the victim of medical malpractice at the hands of the doctor, they will not sue the doctor in court, but rather will resolve the claim via a private, binding arbitration. An arbitration is a proceeding wherein the parties present their case to a neutral third-party, called an arbitrator (often a retired judge or experienced attorney), who then makes a decision and decides the amount of damages, if any. By entering into these agreements, patients are giving up their right to have their case heard by a jury of their peers. This serves three principal benefits to the physicians: (1) arbitrations are more cost-effective and less time-consuming than jury trials, (2) the expectation is that an arbitrator will award less money in damages than would the typical jury; and (3) it assures the prompt resolution of the case and eliminates the appellate process. Nursing homes have required residents and their families to sign similar agreements for years, and they have been enforced by some courts. Although, there is legislation now pending that would prohibit them in the future. For the time being, patients should understand that, by signing these agreements, they are potentially giving up important rights.
Here’s the interesting thing: in 2003, the Pennsylvania Supreme Court took several steps to prevent frivolous medical malpractice filings, the most significant being the Certificate of Merit requirement. A Certificate of Merit is a document signed by the plaintiff’s attorney and filed with the Court certifying that the case has been reviewed by an expert physician in same specialty as the physician being sued, and the expert has provided an affidavit indicating that there is a reasonable probability that negligence has occurred. Plaintiffs now must have a Certificate of Merit, or the case cannot proceed and will be dismissed by the court. As a result of the Certificate of Merit and other procedural changes, medical malpractice filings generally are down state-wide. In 2002, the year before the Certificate of Merit requirement was enacted, there were 2,904 medical malpractice suits filed in Pennsylvania. In 2003, that number was down to 1,712. Last year, there were only 1,528 medical malpractice suits filed in Pennsylvania. The Certificate of Merit and other procedural changes enacted by the courts in 2003 have been effective in weeding out frivolous cases and in reducing the number of medical malpractice cases in general. And, yet, physicians are still using the so-called “medical malpractice crisis” as a basis to require patients to enter into binding arbitration agreements as a condition of treatment. Again, patients should be aware that these agreements are out there, and should understand the rights they are giving up by signing them.