Arbitration agreements must be fair. Those that contain exaggerated conditions and are simply given to patients could be considered membership contracts that could be invalid in almost every state. (Another limitation of the FAA is that it does not address issues of the validity, enforceability, or revocability of a contract. These questions are left to the interpretation of state law.) Essentially, a detention contract is an agreement presented in a “take it or leave it” situation where the person has no choice and no real bargaining power. The only area of health care where the use of arbitration agreements has increased is the nursing home industry. More and more suppliers are including arbitration clauses in their license agreements. In fact, this practice has become so common that the Centers for Medicare and Medicaid Services recently released a letter to state regulators regarding the adequacy of these documents. While they have not prohibited the use of an arbitration agreement, the Centers for Medicare and Medicaid Services have stated that firing a resident solely because of their refusal to sign an arbitration agreement would be a violation of Medicare certification standards.3 INTERSTATE COMMERCE There are many factors that a physician must consider before deciding whether or not to ask a patient to sign an arbitration agreement. No one should consider using such an agreement without having at least some understanding of the state and federal laws that govern the arbitration agreement they use. Doctors should be able to credibly claim that they are involved in interstate trade. Most participate in the Medicare and Medicaid programs, and the majority of cataract surgeries are paid for under these programs.5 In addition, many medical supplies, equipment, and drugs used by doctors` offices are manufactured and shipped from other states.
In an ophthalmologist`s office that only operates refractive surgery and where there is no government reimbursement, it may be more complex to know if a doctor is involved in interstate trade. Again, however, it should be able to argue that the supplies used in practice relate to interstate trade and that some third-party payers are almost certainly located outside the state. Finally, physicians must understand both legally and operationally the risks associated with using an arbitration agreement. You will certainly meet patients who are not willing to sign the agreement, who choose to receive services elsewhere. In addition, physicians who are pioneers in their communities may be those who defend complaints before the local committee of medical examiners or establish the law in their states. However, given the current crisis in the health care sector with respect to medical liability, it may be time to consider the use of arbitration arrangements. The Federal Arbitration Act (FAA) essentially provides that a contract containing a provision requiring the resolution of disputes by arbitration is valid, binding and irrevocable. In addition, it precedes other state laws that may restrict or otherwise restrict the use of arbitration agreements. Of course, the FAA is not the end of discussions about arbitration agreements. The FAA only applies to a “contract that involves the trade of a transaction” or, in english not quite simple, a contract that involves interstate commerce.4 MEMBERSHIP CONTRACTS Physicians should also be aware that the use of arbitration agreements does not guarantee limited judgments or the complete avoidance of their patients` malpractice claims. These documents should not be used to deprive patients of their right to claim damages they believe they have suffered.
In addition, medical staff should be adequately trained to present and explain an arbitration agreement to a patient. It is extremely important that doctors fully understand all the limitations that may be present in their condition. Those who practice in a State or jurisdiction that explicitly restricts the use of arbitration agreements should seriously consider whether they wish to proceed with an agreement that could violate the law of the State. A Houston ophthalmologist, for example, might assume the FAA anticipates Texas` demands, but a judge might rule that he is not involved in interstate commerce. Since this doctor did not receive a signature from the patient`s lawyer, not only does he not have an arbitration agreement, but he also violated the state`s medical law. STATE LAW governs contracts that do not involve interstate commerce, and many states have restricted the use of arbitration agreements by doctors or other health care providers. For example, Texas law states that no physician may request or require a patient to sign an agreement to settle a health liability claim unless (1) a specific language is included in the agreement and (2) an attorney has reviewed and signed the agreement with the patient. Failure to comply with these requirements will be considered a violation of the state`s Medical Practices Act.7 Other states, including Georgia and Arkansas, will not allow arbitration agreements to cover future claims for medical malpractice or personal injury.8 Colorado grants patients a 90-day cooling-off period.9 In addition to the above wording, an arbitration agreement must include immediately before the line of signature that applies to the person, who uses the medical services, contain the following elements. Bold red language of at least 10 points: There has been a lot of discussion among doctors about how best to control the medical liability crisis. Criminal liability law reform has become a popular topic among lawyers, legislators and health professionals, and it will be debated for many years to come. The use of contracts for medical services is also being studied.
However, a growing number of physicians are considering arbitration agreements – as part of medical services contracts or separate agreements – to control their risks and the cost of medical malpractice claims. THE APPEAL OF ARBITRATION Arbitration agreements have been used for many years in the business context and even in consumer agreements, and public policy favors their use.1 Individuals often prefer arbitration to litigation for many reasons. First, they generally view arbitration as faster, cheaper, less formal, and more flexible. Second, they often consider that arbitrators are less likely than a jury to base their decisions on emotions about the law or the plaintiff`s actual harm. Third, arbitrators with particular expertise may be selected. PANEL SELECTION Physicians interested in implementing arbitration agreements should carefully consider restricting the selection of arbitrators. .