Arbitration in the Malpractice Arena
Recently, a group of New Jersey gynecologists have come under fire for requiring their patients to sign a binding arbitration agreement before treating them. The agreement waived the patients’ rights to a jury trial and limited the amount of damages they could be awarded. The use of binding arbitration agreements has grown in recent years, and they are desperately needed in the field of medicine. Malpractice insurance for doctors has become unreasonably expensive because of frivolous lawsuits that award plaintiffs huge damages. These lawsuits are especially a problem in the fields of obstetrics and gynecology. Consequently, many doctors avoid obstetrics and gynecology, and those doctors who remain in this field are forced to charge more for their care to pay for their insurance. Obstetrics and gynecology are crucial areas in medicine and the shortage of obstetricians and gynecologists poses a major threat to the health of American women. The arbitration agreement is beneficial for both doctor and patient. Arbitration agreements limit the award a patient can receive, which helps to keep insurance rates down and lowers the cost of care for all patients. Arbitration is faster and less expensive for plaintiffs than a lawsuit. Arbitration also allows patients to recover damages much more quickly than a lawsuit, and although the damages are limited, arbitration avoids the many appeals that larger punitive damages generate. Some have questioned the legality of these doctor–patient arbitration agreements. Binding arbitration agreements between doctor and patient are no different from those between employer and employee, which the Supreme Court ruled are completely legal in Gilmer v. Interstate/Johnson Lane Corp. The court ruled that Gilmer’s age discrimination suit was subject to compulsory arbitration because of the employment agreement he signed and that the employment agreement requiring arbitration was valid. Therefore, a binding arbitration agreement between doctor and patient is valid. Just as an employee does not have to accept employment if she does not like the offered contract, a patient does not have to be treated by that doctor if she does not like the doctor’s terms. There is, however, no reason a patient should have a problem with an arbitration agreement. It helps lower costs for both doctors and patients and speeds up the process for everyone involved. Not only should doctor–patient arbitration agreements be upheld as legal, they should be encouraged.
1. How would you frame the issue and conclusion of this essay?
2. What ethical norms would cause the author of this essay to take this position? Clue: Look at the ethical norms discussed in Chapter 1.
3. What legal analogy is used to support the author’s argument? How appropriate is that legal analogy?
4. Write an essay that someone who holds an opinion opposite to that of the essay author might write. Clue: What other ethical norms could influence an opinion on this issue?