Stick Out Your Tongue, Lose Your Legal Rights

Have you visited your doctor this year? Did you give up your legal rights when you went?

That may seem like an odd question, but it is one that patients have to ask themselves more and more lately. That’s because doctors, hospitals, dentists, and other health care providers want patients to sign mandatory arbitration agreements before they provide care.

Medical mandatory arbitration clauses (sometimes located in the “fine print” of medical forms) force patients — even those who have severe problems with their care — to go through a binding, private arbitration process — not court — to resolve them.

In other words, if a patient signs a medical mandatory arbitration agreement and is injured by a health care professional, that patient cannot seek answers in court. Instead, the patient must pay a private company to resolve the dispute. These mandatory arbitration agreements, as opposed to voluntary arbitration agreements, force patients out of court whether they want to or not, and whether they understood the agreement they signed or not.

At least one doctors’ organization, the Florida Medical Association, is encouraging doctors to have their patients sign away their legal rights with mandatory arbitration. According to a February 10, 2003 article in American Medical News, the Florida Medical Association has been traveling around Florida holding seminars to teach doctors how to get their patients to sign mandatory arbitration agreements, thus avoiding the decision of a citizen jury in cases where the patient is hurt by the doctor.

But the American Arbitration Association (AAA), American Bar Association (ABA), and American Medical Association (AMA) all agreed in a 1998 report that patients shouldn’t be subject to mandatory agreements they sign before receiving care. “In disputes involving patients, binding forms of dispute resolution should be used only where the parties agree to do so after a dispute arises,” they wrote in Health Care Due Process Protocol.

And the consumer group Public Citizen criticizes the practice as well. “Arbitration clauses are frequently used by insurance companies to stave off appeals of denied medical coverage, and by HMOs to avoid medical malpractice suits. Now their use is spreading to nursing homes and even physicians,” the group says on its website,

“The hurdles raised by arbitration clauses make it easier for health insurers to deny coverage, and reduce incentives for doctors and nursing homes to provide high-quality care,” Public Citizen says.

And, the group says, paying a private company to settle a claim can cost consumers thousands of dollars more than having their disputes resolved in court.

“Our comparison of court fees to the fees charged by the three primary arbitration provider organizations demonstrates that forum costs — the costs charged by the tribunal that will decide the dispute — can be up to five thousand percent [5000%] higher in arbitration than in court litigation.” Public Citizen says in its 2002 report, The Costs of Arbitration.

So the next time you visit your doctor’s office, a hospital, a nursing home, or other facility where you receive health care, you may want to stop before signing a mandatory arbitration agreement — and think about the potential costs, both legal and monetary. You might want to question whether it is a good idea to give up your legal rights before you know if you need them.