STICKY DEFAULTS Watch a doctor ask your patient to sign an arbitration agreement. Under current legislation, as stated in my previous article, the doctor cannot secretly introduce a compromise clause in the paperwork it gives a patient for signature. If a patient does not voluntarily and knowingly consent to conciliation, he would not be bound by the compromise clause. The physician must therefore draw the patient`s attention to the proposal to replace the courts as a model forum for resolving disputes of misconduct. It would be difficult to make this proposal: it would tell the patient that the doctor wants to move away from normal business and create a specific procedure code. The doctor`s proposal would therefore leave the patient thinking that he is chained (see Omri Ben-Shahar – John A. E. Pottow, On the Stickiness of Default Rules, 33 Fla. St. U. L.
Rev. 651 (2006)). I think most doctors would rather take the risk of going to court than create that suspicion in the patient. An example of a detention contract is the conditioning of treatment after the patient signs the arbitration agreement. Colorado requires that any physician who refuses to treat a patient solely because of a refusal to sign an arbitration agreement will be disciplined. A properly drafted arbitration agreement should be clear: refusal to sign is not a precondition for treatment and that the patient continues to be treated or proposes alternatives, even if the arbitration agreement is not signed. Despite the judicial favours of arbitration agreements, there are circumstances in which such agreements are not applicable. For example, the courts will not force arbitration if the plaintiff was not a part of the arbitration agreement. This can arise when the scammer has signed an arbitration agreement in the case of an illegal death claim, but a survivor from the nearest family takes legal action. In Lawrence v. Beverly Manor, a daughter of the care home, as a power of attorney, signed an arbitration agreement when her mother was admitted to the institution.
When the patient died after a fall, the patient`s son filed a complaint. In refusing to force arbitration, the Missouri Supreme Court found that the arbitration agreement applies only to the patient`s rights. Doctor-patient relationships are mainly created by detention contracts that patients sign in the doctor`s office. Whether a physician and his patient accept conciliation therefore depends on the doctor`s decision to include a compromise clause in the contract.