Doc required me to sign a mandatory arbitration agreement. Sketchy?

May 27, 2016 10:50 AM

I fractured my ankle and went to an orthopedic doctor this week. Before I could see the doctor I was required to sign a form agreeing to waive my rights to a jury trial and solve any problem with arbitration. I've never been asked to sign this in a medical setting and it felt sketchy and coercive since I was in a lot of pain and needed to see a doctor. Is this normal? Should I get a different doc?

Not only was I required to sign the mandatory arbitration agreement, I also had to sign something that said I had been informed that the doctor at the clinic has a financial interest in a nearby surgery center, and if I go there for surgery it will benefit the doc financially.

I signed both because, besides needing a doctor, I felt the risks were pretty low (the doctor was looking at my foot, not doing surgery or prescribing meds). However, the doctor prescribed an MRI and said that depending on the results of the MRI, he would recommend a course of treatment (PT, surgery, etc).

Are both of these types of agreements typical? If I get an MRI, can I take it to a different doctor for a second opinion or am I stuck with this original doctor? I was referred to this doctor's office by the Urgent Care center I visited and I don't know anything about it aside from pretty good reviews on Yelp.

posted by rogerrogerwhatsyourrvectorvicto to Law & Government (17 answers total)

Are you sure you're not contractually forbidden to give bad Yelp reviews?

I would run. But I am not American and I'm pretty sure this would be massively illegal here, so that might influence my horror at reading this.
posted by If only I had a penguin... at 10:54 AM on May 27, 2016 [3 favorites]

I'm not an authority, but that sounds super sketchy to me.
posted by uberchet at 10:54 AM on May 27, 2016 [1 favorite]

What state are you in? These forms are super standard in some states, and unheard of in others.
posted by roomthreeseventeen at 10:56 AM on May 27, 2016 [3 favorites]

Response by poster: I'm in California.
posted by rogerrogerwhatsyourrvectorvicto at 11:01 AM on May 27, 2016

In Ca I have signed those types of papers. I did it for my Cataract surgery. Doc owned the surgical center. I trusted the Doc so wasn't really concerned about it in this situation. I think they are trying to stay out of long drawn out malpractice lawsuits with patients. I don't think they are against the law or they wouldn't be pushing them.
posted by cairnoflore at 11:02 AM on May 27, 2016 [1 favorite]

I've never had to sign either (in Virginia) but the financial interest one just seems like good disclosure - knowing that you can decide if you want to pursue a second opinion. The binding arbitration one? I would run away so fast.
posted by brilliantine at 11:04 AM on May 27, 2016 [3 favorites]

Informing you about his financial interest in an outpatient surgery center is common and pretty much required ethically, so don't sweat that form. If he only does surgery at that one place and you disagree with that, then you might need to find another doctor (and if he only has surgical privileges at his own outpatient center you should be concerned). You also need to check your insurance to see if that center is in network should you require it. You have the right to choose a different surgery location but that doc may not have privileges there. But don't worry about that unless he says you need surgery.

I don't know anything about the arbitration agreement, sorry.
posted by MultiFaceted at 11:06 AM on May 27, 2016

If you have a credit card, use software, own a cell phone, or have health insurance, you have probably signed a number of mandatory arbitration agreements - they are becoming more and more common. It's possible that most doctors in your area are now using these as a matter of course, and it might be hard to find a doctor who won't insist you sign one. In your shoes, I would probably sign rather than phone a bunch of doctors' offices while I'm in pain. Since mandatory arbitration basically takes away your right to a jury trial, it's being challenged in court. But for now, it might be hard to avoid these one-sided agreements. More general info here.
posted by FencingGal at 11:50 AM on May 27, 2016 [2 favorites]

mandatory arbitration basically takes away your right to a jury trial

It does much more than that -- those agreements generally take away your right to all government-operated court relief: juries, judges, and appeals all the way up to the Supreme Court. Instead, you get a private, for-profit court system that's widely believed to be highly favorable to the people paying for it, who are (not coincidentally) the same people demanding that you sign arbitration agreements.

It sounds like the damage is already done for you, so good luck; I hope your doctor is skillful, and nothing unfortunate happens to you. But this should be a wake-up call if you ever become politically active: arbitration agreements are much worse for many more people than kerfluffles about who can use which bathroom, or how long the TSA lines are.

(Anybody else notice the parallels to the last election, when [IIRC] the outrages du jour were gay marriage and TSA pornoscanners? What's up with that, anyway?)
posted by spacewrench at 12:04 PM on May 27, 2016 [8 favorites]

Long ago, I was friends with a doctor who told me that doctor's so lived in fear of malpractice suits that they often prescribed treatment defensively. In other words, instead of prescribing what they thought the patient actually needed, they ordered more tests and stuff (at patient expense) to try to cover their ass in case it went to court.

To me, this looks like a proactive attempt to protect the doctor from the insane lawsuit crazy American culture. It might give the doctor breathing room to focus on trying to provide you proper care and not second guess his every decision and how it will look in court should he get sued.

So, if he seems competent and does a good job of taking care of you, I, personally, wouldn't sweat it. If he seems like an incompetent hack, well, you need a different doctor anyway if that is the case. So, if you are dissatisfied with the level of care, go elsewhere. If not, I wouldn't really worry about it too much.
posted by Michele in California at 12:31 PM on May 27, 2016 [2 favorites]

I agree with others that the disclosure of financial connection to the surgical center is a good thing ethics-wise (whether the connection is a good thing is debatable, but given that it exists you should be informed about it going in..)

As far as the arbitration agreement goes: I wouldn't sign it and it would fundamentally damage the trust relationship between myself and the provider. You'll have to make your own decision but I would walk away.
posted by Nerd of the North at 12:32 PM on May 27, 2016

Will he sign one requiring his office to use arbitration instead of going to collections if you fail to pay the bill? Hmmmm.......
posted by Freedomboy at 12:33 PM on May 27, 2016 [6 favorites]

I wonder if that contract is enforceable? It seems like you would have been under some duress, being in pain and in need of medical attention but this being a requirement to get it. I mean a fractured ankle probably isn't something you can reasonably be expected to just deal with on your own if you don't like the waiver. Not a lawyer, but it might be worth asking one about that.

Personally I might walk away and get a new doctor but I am not familiar with whether this is regular practice in California.
posted by Hoopo at 12:49 PM on May 27, 2016 [2 favorites]

In California, you're very much allowed to request copies of your medical records, including imaging results. Note that you request your records formally, in writing, and you receive them yourself (you can share them with other physicians, but you must receive them). Relevant Health and Safety Code sections: 123100 through 123149.5.

You can be charged a fee per page of records, or even a fee for duplicating things like X-ray film, but I've never had a physician charge me (yet).
posted by late afternoon dreaming hotel at 12:57 PM on May 27, 2016 [1 favorite]

In California, you're very much allowed to request copies of your medical records, including imaging results

This is true across the US. It is federal law (HIPAA). And if you use a third party auth, you can even have them sent to someone else instead of having to receive them directly.

The duplicating fee can be painful in some cases. I used to request records routinely as part of my job. In most cases, it will be reasonable. If you have a huge file or the doctor is a butt, the fees can be substantial. The highest charge I ever saw was about $400, which my boss said "nope, we ain't paying that." But most of the time, the duplicating fee was within my approval limit, which was $50.
posted by Michele in California at 1:02 PM on May 27, 2016

These are typical forms, esp the one about the 'financial interest' in the outpatient/ambulatory surgery/MRI center. That is good information; you want to know if they are affiliated with where they refer you to. You don't have to have surgery there; you do have to have surgery where your doc has hospital privileges, which probably includes at least one local hospital. You can choose among those locations. As noted, HIPPA requires them to release your records upon request if you want to shop around. Be sure to check your insurance coverage for MRIs, doctors, RX, PT, etc.

I am a regular at our orthopedic palace (hand surgery, shoulders, fibula removal, knees--an ortho's dream). Had hand surgery at the associated surgery center and it was a far better experience than the hospital where I had knee done. The Ritz, as opposed to Motel 6. It is clearly a profit center, but no more expensive for me because it was Tier 1 or whatever on my insurance.

I wouldn't change doctors unless you don't like/trust them or they don't have privileges elsewhere. There is a lot to be said for convenience--spending time getting MRIs at nonaffiliated or off-site locations and is it is a pain to schedule, be sure the scans end up with the right doc, etc., or going back to pick them up. This was before the orthopedic mega-centers were the norm here--the one I go to has more than 100 doctors + affiliated PT, etc. for any bone, joint, muscle pain. I was just there today.

Next time ask the intake person if the arbitration form is required--it may be optional. But the California Medical Board states a doctor can refuse to treat without the signed form.
posted by Nosey Mrs. Rat at 10:14 PM on May 27, 2016

I don't think they are against the law or they wouldn't be pushing them.

I have absolutely no knowledge or opinion about whether or not these agreements are legal (IAAL, IANACaliforniaL and IANAContractsL, TINLA). But the fact that you were asked to sign one isn't evidence that they are. Lots and lots of people make up their own "contracts" or print forms off the internet and get people to sign them and then it turns out that they're totally unenforceable for lots of different reasons. The doctor may have no idea whether or not it's binding. The doctor may not care whether or not it's binding because he's counting on you believing that it's binding to discourage lawsuits.

I would not sign this, and I would change doctors, and I would tell the doctor that the proposed contract was why he was losing my business, and I would tell other people about my experience. If you get injured or he messes up or it turns out that he's incompetent or something goes terribly wrong, you don't have to sue anyone. But the entire reason we have a court system is so that if you need help to make things right when something bad has happened, there's a place you can go that is supposed to be fair and have rules that can be understood and will take your claims seriously. That's not something I'd be willing to give up.
posted by decathecting at 10:23 PM on May 28, 2016