Implementing Contractual Arbitration in Your Office

Robin Diamond, JD, RN; AHA Fellow–Patient Safety Leadership; Chief Patient Safety Officer, Department of Patient Safety.

California physicians have used physician-patient contractual arbitration agreements as an alternative to the civil jury system since the 1920s. With ever-increasing runaway jury awards and civil litigation costs, contractual arbitration may be a valuable and viable alternative to resolving disputes in court.

Although choosing to arbitrate does not guarantee that a physician will achieve a better result than in a jury trial, in some cases arbitration has proven to be faster, more flexible and efficient, and it can result in a more predictable outcome.

The following guidelines can help you train your staff members and successfully implement this optional program in your practice.

Providing your staff with adequate training makes it easier to implement an arbitration program. Be sure your staff members understand both the advantages and the disadvantages of arbitration, and give them an opportunity to ask questions regarding the change in office practice.

Please contact the Patient Safety Department at (800) 421-2368, extension 1243, if you have questions about contractual arbitration.

Guidelines for Implementing Arbitration

  • Choose a knowledgeable staff member in your front office to be responsible for explaining the arbitration agreement to patients, and train a backup person to cover absences. Instruct your designated staff members that they must never hand the agreement to a patient without providing a thorough explanation.
  • Provide key information to your designated staff members so they can provide a consistent message to patients. Determine the information to be included for patient education, and use it without exception.
  • Instruct your designated staff members to deliver the message with low-key confidence in the arbitration process. They should use statements such as “this is our usual and customary practice.”
  • Make sure that your designated staff members are prepared to respond to questions. Patients receiving arbitration information for the first time may not completely understand the process. Instruct your staff members to answer every question thoroughly. If the staff member does not know the answer, he or she should offer to follow up at a later date…and then do so.
  • Determine—before implementing the program—whether all physicians in your practice agree to use arbitration. Consistency is the key to implementing a successful change in practice. Due to potential complications, we advise that practices take an all or none approach to implementing the program.

Sample Statement

Provide your staff members with a sample statement, such as the example shown below, that they can use to help explain the program to patients:

“Our practice has adopted arbitration as a process that will be mutually beneficial to everyone. Arbitration may provide a more flexible and cost efficient way to resolve disputes. It lessens the intensity of a jury trial and can offer a speedier resolution for both parties. If you are in agreement with our practice change and agree to use the arbitration process, we ask that you read the information provided on the agreement and sign the form. Your signature indicates that you have read and understand this information.”

Additional Suggestions for Implementing Arbitration

  • Always ask if the patient has additional questions and whether he or she understands the arbitration agreement.
  • Be sure that your patient can read. Even if this is a difficult question to ask, it is imperative that you know the answer so you can address any barriers to providing safe, quality care.
  • Provide a knowledgeable translator if the patient cannot read English. Do not use a family member to translate for you as cultures vary and family members might be unable to ask some questions or translate accurately.
  • Provide non-English translations in writing if your patient population is non-English speaking.
  • Exhibit patience with your patients. Expect repeat questions, hesitations, and additional discussions.
  • Post a notice in the waiting room about this new element of your practice well in advance of its implementation to give your patients time to consider the option.
  • Implement the arbitration program on a specific date. Let your patients know that, as of that date, they will be asked to agree to arbitration. As new patients come into your practice, ask them to sign at their time of entry. Other patients will sign as they return for their next appointment.
  • Keep a running list of the most frequently asked questions (and the corresponding answers). Make the list available to all patients.
  • Ask each patient to re-sign the arbitration agreement during your annual information update at the beginning of each year. Updating your patient information annually is a good practice that helps you keep your records and contact information current.

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