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Sign or go elsewhere litigation-wary doctor's demand

In her nearly two decades as a nurse, Kathleen M. Wagner of Palm Harbor has encountered dedicated doctors as well as frivolous malpractice lawsuits.

But she still flinched when a video provided by her doctor's office in Clearwater required that she give up her right to a trial by jury if she wanted treatment.

"I watched it thinking, 'They can't mean me,' " she said of the binding arbitration agreement required by Tampa Bay Women's Care, the largest obstetrics/gynecology group in the area. "I'd never sue them, but I don't want my rights taken away."

Unhappy but unwilling to miss her annual checkup, Wagner, 60, signed the mandatory agreement. Then she wrote to Randy Cohen, who writes the weekly "Ethicist" column for the New York Times. "Is this policy ethical?" Wagner asked. In a response entitled "Doctor, Bully," and published March 30, Cohen said the practice may be legal, but it is not ethical.

"The right to our day in court should be among the inviolable,'' he wrote.

Not so in Florida. According to the state's largest medical malpractice insurer, several hundred doctors now require patients to accept binding arbitration as a condition for care. Obstetricians are particularly likely to have such a requirement because their specialty commands some of the highest rates for professional liability premiums.

"It's not just in Florida; it's something that's happening around the country," said Robert White, president of First Professionals Insurance Co., known as FPIC, in Jacksonville. "More and more we're seeing a desire on the part of doctors and patients to find an alternative to the very expensive, protracted litigation process."

White said the 70 doctors at Tampa Bay Women's Care are among "several hundred" of the insurer's 7,000 customers statewide who require patients to sign a binding arbitration agreement. FPIC even helped to create the practice's seven-minute explanatory video, available on the doctor's Web site or hand-held DVD.

"It utilizes a medium that preserves what people were told if there's any dispute in the future about what was said," White said.

Key points of the agreement are that patients and their families waive their constitutional right to a jury trial in case of a claim.

A lawsuit is still filed with the court, but the complaint is heard by a three-member arbitration panel, with each side choosing one arbitrator and the third picked jointly. Proceedings are private, and the cost of arbitration is split between the patient and doctors. The arbitrators' decision is final, with very limited rights to appeal.

Clancy Bounds, a Winter Park lawyer, said arbitration might be appropriate for disputes over cell phone contracts but not in a doctor-patient relationship.

"You walk into a doctor's office for treatment, not to deal with a significant legal issue and decision,'' he said. "The relationship starts out with an uneven hand in favor of the doctor."

Bounds, a member of Florida Justice Association, said trial lawyers are trying to get a bill through the Legislature that will add certain consumer protections to the arbitration process.

"Right now it's the Wild West out there," he said. "And business controls the rules being applied."

Dr. Robert Yelverton, chief executive of Tampa Bay Women's Care, said that only about 100 patients have refused to sign the arbitration agreement, which has been phased in over the past year.

"Very few patients have objected,'' he said, adding that the group had 100,000 patient visits last year. "They understand why we're doing this."

The reason, he said, is simple economics. Yelverton's 70 OB/GYNs pay an average of $67,000 each year for $250,000 worth of liability insurance. That's a higher premium for less coverage than in the past, but at least the group's doctors have insurance. About 5,000 of the state's 35,000 physicians have opted to go without insurance, though they're required by law to post a sign saying they have posted a $250,000 bond.

"Our insurer didn't give us any discount for requiring arbitration, but we hope our claims will be more rational and reasonable and eventually it will reduce overall rates,'' Yelverton said. "Plus, we can give patients the satisfaction of knowing we have professional coverage."

Yelverton said patients have the option to go elsewhere if they don't want to accept binding arbitration, since his group only accounts for six of about 20 OB/GYNs in Pinellas County and 40 percent of the specialists in Hillsborough County. But it's not always easy for women in the Tampa Bay area to find another provider.

Doctors with USF Physicians Group in Tampa don't have to deal with the arbitration issue because as employees of the University of South Florida, they are immune from civil lawsuits. But Dr. Cathy Lynch, a USF obstetrician, said she empathized with the dilemma of self-employed doctors.

"Insurance reimbursements are going down while costs are going up, so they've got to do something,'' she said. "People are generally quicker to give a tip to their hairdresser than pay their co-pay."

Another large local medical group, Diagnostic Clinic in Largo, considered requiring patients to accept binding arbitration a couple of years ago but dropped the idea.

"We were not smart enough to figure out how to do it without creating more bad feelings from patients than it was worth,'' said Dr. Charles Campbell, who heads the group which has 100 providers at two locations.

Instead, Diagnostic Clinic found another way to avoid the high cost of insuring doctors who deliver babies. But it's not one that will help women of child-bearing age.

"We just got out of the OB business," Campbell said.

Kris Hundley can be reached at [email protected] or (727) 892-2996.

Sign or go elsewhere litigation-wary doctor's demand 04/05/08 [Last modified: Thursday, April 10, 2008 4:18pm]
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