Physician-Patient Arbitration Agreement: Presenting for Signature at the Treatment Room Door

As a Health Law professor, I probably observe the health care encounter a little bit more carefully than most. Today, I sat in the waiting room at the MRI clinic, watching the arrival of the closely stacked appointments — each patient efficiently but speedily ushered through eight pages of medical forms, co-pay and deductible calculations and payments, and one  pre-treatment, pre-disbute physician-patient arbitration agreement each. Some of the patients came fully "prepped" — having complied with elaborate physical preparations for their MRI.

California has a long tortured path to its current understanding of the legal enforceability of pre-treatment pre-dispute voluntary physician-patient arbitration agreements. Although MICRA's provision permitting such agreements was passed much earlier, it was not until Ruiz v. Podolsky in 2010 that some important aspects of the statutory language were clarified.  For those of you wondering, yes such an agreement is legally binding upon you and your heirs in California, so long as the agreement is truly voluntary.

How voluntary you say?  Would presenting the physician-patient arbitration agreement at the time of treatment give enough time for review?  Would presenting the agreement at the entrance to the treatment room door possibly undermine the notion of voluntariness, particularly if the treatment was difficult to schedule, hazardous to health to delay, or very challenging to re-schedule elsewhere in a plan with narrow networks?

This gets tricky.  The American College of Obstetricians and Gynecologists (in 2014) offered an opinion that a provider may not condition treatment on an obligation to sign such an agreement but this is a national perspective. Closer to home, the California Medical Association opines that a physician may decline to accept a new patient who refuses to sign a medical arbitration agreement, implying that the only time to confront this  issue is before the start of the patient-provider relationship.  But, this still begs the question of what kind of advance notice of such a contingent assent is required and how far in advance it must be solicited to meet the voluntariness requirement. As many insurers require that an MRI be provided only upon referral, ought the disclosure of the mandatory assent to the physician-patient arbitration agreement be made at the point of the referral itself?

From one perspective, arbitration agreements are an expression of freedom used to articulate a previously agreed upon mechanism for dispute resolution. From another, they fulfill the promise of MICRA in helping to contain costs associated with medical negligence claims.  How the provider-patient relationship became, in California, the best manifestation of the environment in which to express and experience such freedom of contract might bear re-thinking, especially  in light of significant  diversity of opinion about MICRA's accomplishment of its goals

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