By LIZ HILL
With insurance premiums on the rise for doctors and hospitals across the country, Intermountain Health Care now requires patients in Bountiful and Salt Lake to sign arbitration agreements before they receive care.
The new requirement came after the Utah Legislature passed a measure last session allowing such agreements. The Utah Medical Association lobbied heavily for the measure, claiming high insurance premiums were running doctors out of business.
But this minor victory for members of the health care profession could be a major set back for health care consumers.
Arbitration agreements, like the one IHC is now requiring its patients to sign, state patients who claim they are victims of medical malpractice will settle their complaints in an arbitration hearing and not in court.
Instead of just hiring a lawyer, victims of medical malpractice will now have to split, with the defendant, the cost of three arbitrators who can charge between $100 and $300 an hour to resolve the claim.
'The unfair thing about arbitration agreements is both sides have to bare the costs of the arbitrators equally,' said Cory Mattson, a medical malpractice lawyer in Salt Lake. 'They now have to pay three people $250 an hour instead of having a free judge down at the district court.'
This does not include the cost of any expert witnesses plaintiffs will have to pay to testify. Doctors hired as medical experts during a medical malpractice trial can cost as much as $600 an hour, Mattson said.
He is also concerned about the absence of a jury during the arbitration process.
'Arbitrators do not have fresh eyes or fresh ears, but they are usually former defense attorneys who are going to hear hundreds of cases,' Mattson said. 'Lawyers are going to keep track of how arbitrators decide cases. The is then just like scouting out professional sports.'
Daron Cowley, spokesperson for IHC, said he expects arbitration will reduce cost and time spent in litigation.
'Arbitration law says a dispute must be settled within one year, whereas some malpractice claims can take up to six years to settle in court,' Cowley said. 'When you are talking about a trial by jury, it is important to remember, in this case, that it is the doctor who is the defendant. He is the one changing the venue from the court to an arbitration hearing.'
With IHC's new policy, 170,000 patients are required to sign the arbitration agreement or go elsewhere for treatment. According to the IHC Web site only 17 people have declined to sign so far.
Cowley cites rising insurance premiums as a source of motivation for doctors to require patients to sign arbitration agreements. The IHC Web site states their company's insurance premiums have tripled over the last six years.
'Health care costs are a big issue in our community, and the cost of malpractice insurance drags up the cost for everyone,' Cowley said. 'Many doctors are deciding not to practice.'
Malpractice insurance for OB/GYNs practicing in Utah has increased from $42,000 per year in 2000 to $71,000 per year in 2003.
'If you live in rural Utah and the local doctor has stopped delivering babies because of high insurance costs, that's an issue,' Cowley said.
Chris Bowerbank, an insurance agent from The Insurance Exchange, Inc., said arbitration agreements are a way to keep medical malpractice insurance premiums from rising. It remains to be seen whether or not these agreements will actually lower premiums or lower health care costs for consumers, he added.
Patients Against Mandatory Medical Arbitration, a group formed in response to the IHC arbitration agreement, has threatened to file a lawsuit against IHC.
According to the PAMMA Web site, the IHC agreement 'requires patients to forfeit their legal rights in order to receive needed medical care.'
The IHC agreement explicitly states that once signed, the patient 'waives the right to go to court or to have a jury trial, or seek any other legal remedy since all of the claims for damages ... will be arbitrated.'
Jonathon Tishy, an associate attorney at Parker and McConkie, the law firm hired to represent PAMMA, called the arbitration agreement 'unfair and lopsided.'
'Certainly by signing any arbitration agreement you are giving up your right to go to trial, however in the agreement you also have to give up your right to appeal,' Tishy said.
Tishy, who has more than five years experience in arbitration law, also takes issue with the privacy clause in the IHC arbitration agreement. It states, 'The parties and all other participants agree to keep the arbitration proceedings private and confidential.'
'This is one of the most serious and egregious provisions in this agreement,' Tishy said. 'The patients can no longer let other people know when a doctor malpractices. Now the bad doctors are being protected because there is no reporting mechanism. This takes away the incentive for practicing good medicine because no one is going to be publicly accountable.'
Mark Fotheringham, a spokesperson for the Utah Medical Association, said: 'Most of their arguments hold no water whatsoever. The bottom line is a jury is neither the only way to justice nor the best way. A physician that has been negligent and refuses to settle has a better chance of getting off in front of a jury of than in front of a panel of medical professionals.'