“[T]he practice of medicine is not a business and can never be one . . . . Our fellow creatures cannot be dealt with as a man deals in corn and coal”
“The virtue-based physician could never see his patient as a ‘customer,’ consumer, insured life or any other commercialized, industrialized transformations of the ancient and respectable word ‘patient.’”
“Patients have always been consumers. Before health insurance was common, they shopped in a market for medical services just as they shopped in a market for toasters and tailors.”
In January 2011, a patient, a not yet pregnant mother (and her husband), went to a medical office in Florida seeking obstetrical care. Upon becoming a patient of the office, she executed an arbitration agreement covering medical liability claims. Florida has a statute providing for voluntary arbitration of medical negligence claims but she never requested arbitration pursuant to this statute. Although she “willingly signed the arbitration agreement,” which stated, “the parties waive the right to a jury trial and consent to arbitrate all claims arising out of or related to medical care and treatment,” one wonders if the execution of the arbitration agreement was a condition of treatment; an assumption to which I will adhere for the purposes of this paper.
The patient had been taking a medication “to treat a chronic disease.” She took an at-home pregnancy test, which returned a positive result. The clinic, however, advised the patient “that the pregnancy was nonviable,” and recommended a D & C procedure, which the patient refused. The patient “resumed taking the drug, allegedly believing that spontaneous passage of the fetus would occur.” The patient “also alleged that she was unaware of the possible adverse effects the drug might have on a fetus.” In fact, the patient remained pregnant and gave birth to a child with severe birth defects.
Thereafter, the patient and her husband sued the clinic and her attending physician for medical negligence. The clinic “successfully moved to compel arbitration.” The order compelling arbitration was appealed and the trial court’s order was affirmed on appeal.
Is it reasonable for a physician to condition treatment upon the patient’s execution of an arbitration agreement? Is such an agreement enforceable? Is such an agreement medically ethical? This paper will address these topics (and others) in an effort to determine whether a treatment conditioned upon the execution of an arbitration agreement covering medical liability claims is consistent with, and should be a defensible component of the physician-patient relationship.