<p>I’ve never been asked to sign one. I live in Texas.</p>
<p>“It’s really a contract of adhesion (where one party has all of the bargaining power).”</p>
<p>That may be true if every practice in the region requires it. If you can just choose another doctor, I don’t see how the doctor has all the bargaining power.</p>
<p>There are good and bad arbitration systems, but on the whole, I’m in favor of resolving these disputes in front of people who know medicine rather than judges and juries. I think it’s nuts to have random citizens, or lawyers, evaluating the persuasiveness of two expert endocrinologists who disagree about the standard of care. </p>
<p>I feel the same about having specialized courts/arbiters for patent claims. When I was clerking in federal district court, my judge had to decide whether the defendant’s hip-joint-replacement device was substantially similar to the plaintiff’s. The judge and clerks knew nothing about engineering, orthopedics, or industrial design. We spent weeks trying to make head or tail of the case, did our best, and counted on the the Federal Circuit (which hears all patent appeals, and DOES have judges and clerks who understand how things are built) to get it right.</p>
<p>Well, Hanna, if the choice were judges/juries vs. ‘people who know medicine’ I might agree with you, but I think the choice actually is judge/juries vs. ‘professional arbitrators who have a mutually beneficial relationship with the insurance company’, in which case, I’d prefer the judge/jury system.</p>
<p>That’s not always the case. Arbitration agreements are not all created equal. They can be written in hundreds of different ways.</p>
<p>That may be true, Hanna, but not so much with this type of arbitration agreement. We’re not talking agreements between two equal parties. These are agreements written by physicians/med mal insurers, exclusively for their benefit. I have seen several versions from around the country, and the common approach (of the ones I saw) stipulated that the physician and patient could each choose members of the arbitration panel, but their choice had to be selected from among arbitrators already designated - by the insurance company. That’s a perfect example of the term “stacking the deck”.</p>
<p>Someone sent me a recent article from a legal magazine that discussed a NJ court ruling about arbitration agreements. The court held that arbitration agreements are valid, but that certain provisions may be unenforceable if they are egregious.</p>
<p>One of the provisions the court found unenforceable was a section that said that an injured patient could not take statements from, or depose, any witnesses. That goes from “stacking the deck”, all the way to “OMG” territory.</p>