Wednesday, Aug. 6, 2003 | 11:12 a.m.
CARSON CITY -- A national consumer organization says some Nevada doctors are violating the policy of the American Medical Association by coercing patients to give up their right to a jury trial in a malpractice claim.
In a report released Tuesday, the Center for Justice and Democracy criticized doctors in Las Vegas who are asking patients, before they are treated, to agree to binding arbitration rather than a court suit in malpractice cases.
But representatives of doctors in Nevada say that the requests are legal and that they do not know of any patients who have been turned away for refusing to sign such an agreement.
Dr. Rudy Manthei of the group Keep Our Doctors in Nevada said it's the lawyers who are unhappy, not the patients who are asked to sign the agreements.
"I have never heard of one patient being refused treatment for not signing these," Manthei said, adding that some doctors have used the agreements since at least 1983.
But Joanne Doroshow, executive director of the Center for Justice and Democracy in Washington, D.C., said the practice is "in direct violation of AMA policy, which says that such agreements are fundamentally unfair to patients."
She said that in 1998, the AMA, the American Bar Association and the American Arbitration Association agreed these types of arrangements were unfair to patients.
She said the arbitration association has agreed it will not participate in arbitration between a patient and a health care provider if the patient was forced to give up his rights before malpractice occurred.
Doroshow urged patients not to sign the documents and to complain to the doctor and to the Nevada Medical Association.
Larry Matheis, executive director of the Nevada State Medical Association, said the agreements are allowed under a general law in Nevada that applies not only to doctors but other categories.
Matheis and Manthei said the agreements are not common in Las Vegas, but that more doctors are starting to use them as a way to protect themselves from large malpractice judgments. From 1996 through 2000, juries in Las Vegas awarded a total of $21 million in medical malpractice judgments, Manthei said. But in 2001, the juries returned verdicts costing $22 million, or more in one year than in the previous five combined, he said.
"The system is out of control," Manthei said. "(Doctors) have to do drastic things."
Advocates for patients' rights to compensation say that the judgments and the effect they may have on insurance premiums encourage doctors to be more careful when treating patients. And, they say, juries should be allowed to decide how much a patient or a patient's survivors should be paid for medical malpractice.
"Mandatory binding arbitration severely obstructs a patient's path to justice," Doroshow said.
She said the AMA "should at once denounce use of these agreements in Nevada and bring this practice to an immediate halt."
Binding arbitration exists in other states but those agreements are signed after a complaint of malpractice is launched, not as a prerequisite for receiving treatment, Doroshow said.
Matheis said the medical association advises physicians that they should "in no way coerce a patient" to sign these agreement. And they should not be presented when there is an emergency or the patient is in severe pain, he said.
The best way is to ask the patient to sign the agreement when he or she first shows up for treatment, Matheis said.
A patient can bring the document home to study it and can also talk to a lawyer about it, he said.
Doroshow said the use of binding arbitration doesn't work in favor of the patient who has been injured. Arbitrators are not required to have any legal training, she said. They may be biased, or even under contract with an insurance company or health care provider, she said. She said discovery, whereby parties obtain information on one another, is extremely limited, and that rules of evidence do not apply. Costs must generally be split between the injured victim and the insurance company, including arbitrator's fees that can be hundreds or thousands of dollars per hour. And there is no right to appeal, Doroshow said.
Doroshow said a study in California showed that arbitration of malpractice claims is expensive, with arbitrators charging $250 to $400 per hour plus additional costs. The California report, she said, points out that "most states lack uniform professional standards and licensing requirements for arbitrators, allowing the health care industry to have claims decided by repeat arbitrators who tend to rule in their favor."
Matheis said, however, that these arbitration agreements have been upheld by courts in California where they have been in use for years. Matheis said arbitration over medical cases is done in almost every state. Doroshow said, however, that the Nevada system is unusual because it requires a patient to sign the agreement up front.
Matheis said the 2003 Legislature did little to solve the problem of runaway medical malpractice insurance premiums. He said the next step to will be a 2004 ballot item that could further limit malpractice awards.
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