My doctor included a waiver form in my pre-op packet that forces me to use arbitration to resolve any future disagreements. Basically, I'm being asked to waive my right to a jury or judgement in court. Is this common practice for plastic surgeons? Or is this a white flag -- a warning that I should find another doctor?
Is It Normal to Sign a Waiver Before Plastic Surgery?
Doctor Answers (8)
Arbitration Agreements in Plastic Surgery
The American legal system, including Tort (injury) Law, is largely a close copy of the British Legal system. But the American system has several glaring obvious differences which have most to do with the preservation of lawyers' income - not to preserve fairness.
In British Jurisprudence, the loser pays - if you sue and lose, you rightfully will need to pay the legal costs and financial losses of the party you (legally but unsuccessfully) assaulted in the courts. A lawsuit is as painful and injurious as a physical injury. The doctor losses time with his family with his patients and the level of stress is enormous. Yet, in our system, plaintiffs' lawyers walk away every day from thousands of bogus lawsuits they lost without having to pay doctors or others for the pain,havoc and financial losses they caused. This does NOT happen in the UK.
If we had a Loser Pays provision in our courts, over 80% of merit-less suits would vanish, preserving court resources for the many lawsuits that should have been filed. Our economy will be much better off, medical costs will be reduced - but lawyers' incomes will drop.
So - we can't have that.
Each time a doctor is sued, regardless of whether he/she is actually guilty or not, the most they can hope for is to settle the case. In other words, in our system we have a legalized extortion system in which every claim result in payment of some kind with a minimal to no risk to the lawyers. What a country.
As you may know, most financial and brokerage institutions have binding arbitration contracts in place. To save themselves the hassles of nuisance suits, some of the busiest professionals, those who can turn down many clients, have also adopted such policies.
If you are not comfortable with this policy or life perspective you should find another surgeon.
This is not something that I have ever asked a patient to do. I spend a lot of time during my consultation and pre operative visit discussing the procedure, post operative course and associated risks and complications. This provides a thorough understanding before getting anywhere near an operating room.
Malpractice insurance, arbitration agreements, waivers prior to plastic surgery
Many physicians use this to limit or avoid malpractice insurance. I have major concerns with the large percentage of awards that the lawyers take from the patient who has suffered an injury. While I believe that arbitration can be fair and avoid the unnecessary cost of litigation, I would investigate to see if your surgeon has a history of malpractice suits or at least ask other physicians or professionals in the medical community. When physicians or surgeons are uninsurable (possibly a bad sign), this could indicate that you should seek treatment elsewhere. In this litigious society, it is not unusual for a busy surgeon to have one or two lawsuits; however, larger number of cases may be an indication of poor judgement.
Agree with everybody here on waiver before plastic surgery
I appreciate Dr. Aldea's discourse on a fundamental difference between American and British Jurisprudence. His views are correct and telling. Malpractice reform is so simple only the foul efforts of trial lawyers have prevented it.
1) Losers pay.
2) Contingency fees should be limited to 10%. The rest going to the plaintiff.
3) Awards and fines dealt to drug companies, which amount to millions, should go to the charity or research of the disease the drug was meant to treat, not to the already overstuffed pockets of greedy lawyers.
Drs. Placik and Rand are also correct. The waiver you are being asked to sign might wave a slightly yellow flag, maybe a mustard colored one. It would be wise to check to see whether this physician has had a host of law suits. One or two, in today's environment is acceptable. However, more than two should draw a caution and I would find someone with a cleaner record. A few ways to check:
1) Go to your state Board of Medicine's website. Often this information is available on line.
2) See if your physician has hospital credentials. Hospitals are required to check out their physician intensively, before granting them hospital privileges.
3) Call the local medical society. Membership in a medical society is entirely voluntary. If you were a physician with a number of black marks on your record, you would not want medical society members rooting around your past.
In New York, I believe a doctor cannot ask a patient to sign this type of form, but I know in other states it is permissible. I would not raise a red flag over this.
One of the top plastic surgeons in SF ( Dr. Ristow) has doen this for years because he can do it and mimimize his malpractice insurance coverage. It is no red or white flag there. But as Dr. Placik said, it might indicate problems with the doctor so you should check into his or her lawsuit history.
Arbitration vs. lawsuit
There are pros and cons for parties to enter or not enter into arbitration agreements. Generally speaking, arbitration is less costly than lawsuits to settle disagreements. Some doctors use it and some do not. I don't think it is a red flag at all, just a matter of practicality that can benefit both parties in the unfortunate event of a conflict.
I am in Texas, and I haven't spoken with others about this. Personally, I only use standard consent forms. I think that this only forces you to use arbitration rather than a jury trial if you file for malpractice. I would advise you that if this is a problem for you, seek another plastic surgeon, or consult with an attorney to see what you are giving up.