Las Vegas Sun

March 28, 2024

Arbitration agreements can separate doctors, patients

Gina Greisen said she spent more than two years looking for a new obstetrician/gynecologist after her previous doctor unfairly "fired" her.

That's the kind of issue that sometimes ends up in court - which is ironic, given that Greisen believes her refusal to sign a form saying she would never take her doctor to court is why she needed a new physician.

Greisen finds it more than coincidental that she was told that she would have to look for a new doctor after refusing to sign an arbitration agreement with her then-obstetrician, Dr. Florence Jameson. Under such agreements, a patient gives up the right to a court trial in the event that a malpractice issue emerges, agreeing instead to settle any disputes by arbitration.

"I was a patient for eight years - she delivered my daughter," the 38-year-old Greisen said. "She never mentioned dropping me as a patient until I said I didn't want to sign."

Jameson, however, maintains that her decision to drop Greisen as a patient had nothing to do with Greisen's refusal to sign the arbitration agreement. Rather, she insists it stemmed from her need to downsize her practice because of the loss of a business partner and rising malpractice insurance rates.

In fact, other patients who did not sign the agreement were retained, while some who signed the document were dropped, she said. Those decisions, Jameson added, were random.

"When my partner left, leaving me with tons of patients, we were facing multiple issues overnight, and I was guided by fear," Jameson said. "We did drastic things, and one of them was arbitration agreements.

"You have to look at it this way: how do you decide who to keep and who to drop?" Jameson asked.

There is no question that Jameson and other doctors throughout the Las Vegas Valley were facing tough decisions in 2004.

Malpractice rates had been skyrocketing for several years, prompting some doctors to leave the state, adding to the challenges of an already overburdened health system.

It was in that environment that the issue of pre-treatment arbitration agreements arose in Nevada, a controversial subject surrounded by thorny legal and ethical questions.

While malpractice cases are often settled by arbitration, the usual course of action is for a patient and physician, after consultation with attorneys, to mutually choose arbitration over a trial.

Doctors' insistence that patients waive their right to a trial before they are treated, however, significantly changes that equation.

Paradoxically, courts ultimately may have to decide whether the agreements that are meant to keep doctors and patients out of courtrooms are legally binding.

Dr. Weldon Havins, executive director of the Clark County Medical Society and a lawyer, argues that if certain guidelines are followed, the agreement is a valid contract.

"If the document is properly understood by the patient, who then chooses to sign it, it is a valid contract," Havins said. "If it is signed under duress or coerced, it is invalid."

Doctors such as Jameson contend that it is the patient's responsibility to read the document - often presented during an initial office visit - and ask questions if he or she is uncertain about its provisions.

But local malpractice lawyer Mitch Cobeaga argues that that level of patient-doctor dialogue would be insufficient for the agreement to stand up in court.

"Without looking at a particular agreement, my general reaction is that they are not binding on the patient if they are signed in this way," Cobeaga said.

For the agreement to be properly understood, lawyers say, it should be explained in detail by someone in the doctor's office who fully understands the rights that the patient is giving up.

By her own admission, Jameson does not follow that procedure. That, Havins admits, could be a plausible argument to void the agreement.

Even if that hurdle is cleared, there are other issues to resolve, including the question of whether the patient signed the agreement under duress.

Simply requesting that a patient sign the document, lawyers argue, creates a coercive situation, one exacerbated by the threat of withholding even routine medical treatment. And even if a patient who refuses to sign the agreement is not denied treatment, he realizes that he risks alienating the person who provides him with health care, lawyers say.

Doctors emphasize that arbitration agreements are used in many other businesses.

"People sign arbitration agreements every time they get a credit card," Havins said. "Nobody questions whether those agreements are binding."

Lawyers contend, however, that there should be a higher standard for the public's health than for the public's credit.

Malpractice lawyer Gerry Gillock believes that doctors have as much to lose under pre-treatment arbitration agreements as their patients.

"It really ties their hands," Gillock said. "It gives them one less option."

Although some doctors say malpractice insurance companies prefer the arbitration agreements, one Nevada insurer agrees with Gillock.

"We actually discourage physicians from asking patients to sign (pre-treatment) arbitration agreements," said Tony Ball, vice president of claims for Medical Protective Company. "Arbitration is one tool in the toolbox, and we will pursue it if a particular case warrants it."

While some state legislators say they are uncomfortable with patients being asked to sign the agreements, they say it is unlikely that they will take action to resolve the issue.

"There is a certain amount of coercion that is implied," Assemblywoman Sheila Leslie, D-Reno, said. "My general reaction is (this is) a disturbing trend that I was not aware of."

There is also no solution to be found at the state attorney general's office.

"I do not believe there is a statute that governs this," said Diana Hagadis, legal counsel for the attorney general's office. "It would seem to be an issue for the state Board of Medical Examiners."

Tony Clark of the Board of Medical Examiners said, however, that there would be no reason for the board to rule on the issue.

"We license and discipline the performance of doctors and address action where there is a complaint," Clark said.

So, where does that leave Greisen and Jameson?

Greisen, who found a doctor earlier this month, is very happy with the medical care she is receiving - without having to sign an arbitration agreement.

Jameson, president-elect of the Clark County Medical Society, admits she has considered a change of heart on the issue of arbitration agreements.

"I wonder if they are even necessary anymore," she said. "Things are better now than they were when I started using them."

archive