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Legal waivers under fire, have limited use
Local attorneys are criticizing a Pennsylvania hospital's use of a medical waiver that asks patients to sign away their right to a jury trial in the event of malpractice, but hospital officials remain steadfast in saying the waiver is voluntary and a good way to resolve claims more expediently.
Kindred Hospital — Wyoming Valley, a long-term acute care facility in Wilkes-Barre, PA, asks patients to sign a waiver that requires any claim for injuries to be handled through mediation or binding arbitration rather than a lawsuit. That route usually takes months to resolve a complaint, as opposed to the years it may take for a claim to make its way through the court system.
Attorneys criticize waivers
Plaintiffs' attorneys in the area are criticizing the waivers. They say the waivers unfairly restrict patients' right to sue and that people sign them without fully understanding what the waivers mean. David Saba, JD, an attorney with Hourigan and Kluger in Kingston, PA, told the Times Leader newspaper in Wilkes-Barre, PA, that "the circumstances hardly lend themselves to cool, rational thought."1 Saba represents plaintiffs who have filed medical malpractice claims and says he has never seen a waiver like the one used by Kindred.
Concern was first raised by Paul Lyon, director of the Committee for Justice for All, a nonprofit group in Kingston, PA, that works to preserve plaintiff's rights. Lyon says he was appalled when he first heard of the waivers and calls them "absolutely outrageous." The hospital is taking advantage of people who are not in a position to carefully consider how the waiver affects their rights, he says.
Erin Pica, the administrator of Kindred Hospital, declined Healthcare Risk Management's request for comment, but she told the Times Leader that the waivers are a fair alternative that offers benefits to the hospital and the patient. With mediation or arbitration, both parties benefit form lower attorneys' fees and the patient receives compensation much more quickly, she says. "It's binding arbitration on Kindred as well as the patient," she says. "If people don't want to sign it, they don't have to. It's not a condition of admission."
Can limit to clinics, not inpatient
Waivers that require mediation or arbitration can be an effective way to reduce lawsuits, but you should expect criticism from opponents, says Harlan Hammond, MBA, CPHRM, DFASHRM, ARM, HRM, assistant vice president for risk management services with Intermountain Health Care in Salt Lake City. A major malpractice insurer in Utah has been encouraging insureds to use arbitration agreements, he says, so he researched the pros and cons.
"We put together an arbitration agreement that we asked patients to sign. At the time, the state legislature allowed us to make that a condition for receiving nonemergent patient care," he says. "So we ran an experiment with that at one of our clinics, asking patients to sign it as they came in, and we had very favorable results with the trial period. So decided to expand it beyond that one clinic."
Local attorneys took exception to the idea and went on the offensive to disparage the agreements. They argued that Intermountain was strong-arming patients into signing away their rights. Partly as a result of those protests, the state legislature revised the law to say that mediation must be an option in addition to arbitration. Critics had complained that arbitration was costly to the plaintiff, who would share the cost equally with the hospital.
Because of the uproar from critics of the agreements, Intermountain decided to make the waiver voluntary, offering it to all patients in the physician clinics, but not in the inpatient setting. Hammond and other hospital leaders were worried about the ability to adequately convey the meaning of the agreement when a patient was being admitted to the hospital, which already involved a stack of paperwork.
Hammond says the legality of such waivers will always be questioned, and there will be plenty of attorneys to argue that the agreement cannot be enforced because people can be coerced into signing away their right to sue. The courts have determined that this is enforceable, and that the agreement to settle future disputes through mediation or arbitration is valid, Hammond says. That doesn't mean that people won't argue the point anyway, he says. "The question really comes down to whether the person understood what they were doing or whether they signed under duress, and that can be argued with many legal agreements," Hammond says. "It doesn't mean the whole concept of the agreement is invalid."
Useful, but benefits limited
Hammond says the agreement has been beneficial in the limited manner in which his organization uses it.
"It has had some impact for us, but not a significant effect. About 5% of our open claim files are working down an arbitration track," he says. "Financially so far, the impact has been negligible, but potentially it could be more significant in the future."
Hammond says he supports the idea of mediation and arbitration agreements, at least philosophically. The costs can be much lower for everyone, the process can be faster, and there is more predictability because the case is taken before a panel of three people versed in the issues rather than a randomly chosen jury. On a practical level, you have to expect resistance if you decide to do this, Hammond says. "It can be a fair, reasonable strategy, but you have to expect some in the community to disagree strongly," he says. "I would caution people that want to make this mandatory as a condition of care, because that will elicit a stronger level of push back than if you started out on a voluntary basis. Understand that it will receive some media attention, and you have to be ready for that."
1. "Hospital's waiver concerns lawyers." Times Leader, Kingston, PA. Feb. 26, 2007. Accessed at www.timesleader.com/mil/timesleader/16785513.htm.
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