1985 case cited in debate over doctors’ contracts

Friday, Aug. 8, 2003 | 11:06 a.m.

CARSON CITY -- Lawyers disagree over whether agreements some Southern Nevada doctors are asking patients to sign before they receive treatment can be enforced.

In the contracts patients agree to take any future claims of medical malpractice directly to binding arbitration, waiving their right to sue.

A Las Vegas lawyer who took a case to the Nevada Supreme Court in 1985 said Thursday that justices ruled in that case that such contracts are unenforceable.

Attorney Richard Myers said he believes that is still a "good law today."

Dr. Donald Havins, counsel to the Clark County Medical Society, disagreed, referring to a 2002 decision by the Nevada Supreme Court that could supersede the 1985 case. The contracts have been a hot topic of discussion since a national organization spoke out against them earlier this week.

Myers called the contracts "void, unenforceable and contrary to public policy."

Myers pointed to the 1985 case Obstetrics and Gynecologists v. Pepper, in which he represented a woman who sued a Las Vegas medical clinic that required her to sign the arbitration agreement before she received treatment. The Supreme Court called this an "adhesion contract" that is offered to the consumer on a "take it or leave it" basis without affording the individual a realistic opportunity to bargain. The court said: "The distinctive feature of an adhesion contract is that the weaker party has no choice as to its terms." The court said the contracts should not be enforced unless there was "plain and clear notification of the terms and an understanding consent."

Havins pointed to a 2002 decision, Burch v. District Court, involving a dispute between homeowners and a development company in Reno, that he said makes such contracts legal in some cases.

The decision in that case said: "This court permits the enforcement of adhesion contracts where there is plain and clear notification of the terms and an understanding consent" and "if it falls within the reasonable expectations of the weaker party."

The model contract offered by the Clark County Medical Society states: "This mutual binding arbitration agreement may be rescinded by written notice from the patient or patient's legal representative within 30 days of signature."

Bold print at the end of the agreement reads: "Notice: by signing this contract you are agreeing to have any issue of medical malpractice decided by neutral arbitration and you are giving up your right to a jury or court trial."

The American Arbitration Association said it would no longer accept cases in the health care area in which a patient has signed an agreement in order to get medical care. That policy became effective last January.

Robert Meade, senior vice president of the American Arbitration Association, said the policy adopted by the organization to ensure due process. He said his organization worked with the American Medical Association and the American Bar Association in developing the policy.

He said patients who enter a doctor's office may be in an agitated state due to their medical condition and are hit with a number of forms, including insurance coverage and the now privacy act regulations.

An arbitration agreement this is just another document to such patients, he said, and may be signed just so the patients can see the doctor. It's an issue of fairness, Meade said.

The Center for Justice & Democracy, a national consumer rights organization, said this week that Nevada doctors should "immediately stop coercing patients into signing away their rights to jury trial in the event of medical malpractice."

The center objects to patients being required to sign such agreements to receive medical care. The center had no objections if after the malpractice occurs the patient agrees to binding arbitration.

Havins said the advantage of going to arbitration is that the patient gets any award money sooner and there is no appeal process to drag out the case. Arbitrators are usually retired judges or attorneys rather than a jury, which sometimes relies too much on emotions, he said.

The arbitration agreements have not lowered medical malpractice insurance premiums in other states, Havins said.

Some doctors have been requiring the arbitration agreements since the early 1980s, Havins said.

But he said he knew of only four doctors who have required their patients to sign the forms before receiving treatment. "There may be others of which I am not aware.

"It's a lot of hoopla about nothing," he said.

Because of the new policy of the American Arbitration Association, Havins said any existing contracts should be reworded to eliminate a section that a decision would be made by an AAA arbitrator.