Tips for Implementing Contractual Arbitration in California Practices

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.

These tips can help you implement this optional program in your office:

  • Educate yourself about the pros and cons of arbitration.
  • Additional resources include your patient safety risk manager at The Doctors Company and CMA On-Call (available at www.cmanet.org).
  • Determine whether all physicians within your practice agree that every patient should be offered arbitration. Due to potential complications, we advise that practices take an all or none approach to implementing the program.
  • Make sure everyone understands the ramifications if one or more physicians within your practice do not want to participate in arbitration; e.g., what happens if one of the physicians who does not participate in the arbitration program covers on call for your patients.
  • Post a notice in the waiting room well before implementing the arbitration program to give patients time to become aware of the change and adjust to the concept. Keep the notice posted for a reasonable length of time. Depending on your type of practice or patient population, this could be 90 days or up to one year. When you remove the notice, replace it with a one-page explanation regarding the use of arbitration. Post the notice where patients check in at the front desk so it will be readily visible.
  • Post all notices in English and Spanish (or other prominent non-English language).
  • Consider sending information regarding arbitration, including a copy of the agreement, to patients before their scheduled visits so they will have an opportunity to review the agreement and information prior to their arrival at the office.
  • 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.
  • Train designated staff members on how to explain the arbitration agreement to patients and how to answer their questions in a consistent manner.
  • Never provide arbitration agreements to a patient without an explanation.
  • Instruct your designated staff members to deliver the message in a low-key, confident, and nonaggressive manner so that the patient does not feel pressured into signing the arbitration agreement.
  • Instruct your designated staff members to answer every question thoroughly. If a staff member doesn’t know the answer, he or she should offer to follow up with the answer at a later date…and then do so.
  • Always ask if the patient has additional questions and whether he or she understands the arbitration document.
  • Be sure that your patient can read. Even if this is difficult to assess, it is imperative to the provision of safe, quality care that you address any barriers to patient education.
  • Provide a knowledgeable translator if the patient cannot read English. Do not use a family member as an interpreter because cultures vary, and a family member might be unable to ask some questions or the translation might be incorrect.
  • Have the arbitration agreements translated into your most common non-English languages. Remember forms must be in triplicate to meet state regulations.
  • Assess each patient for any cultural considerations, such as who makes healthcare decisions in a family.

Sample Statement

"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 document and sign the form. Your signature indicates that you have read and understand this information."

 

 


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

 

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