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Going to Court – Do You Have A Choice?

Every time the administration changes in Washington, physicians wonder what impact it will have on their professional lives. One of the more closely-watched issues is tort reform.

An article written by the AMA takes a look at a pilot project run jointly by a county Medical Society and Bar Association in Pennsylvania. This was created in large part because of skyrocketing liability costs in that state and at the request of Governor Ed Rendell. The project relies on a two-step mediation process that aims to reduce legal costs, improve quality of care, and help involved parties to learn from the experience. Other places such as Chicago’s Rush University Medical Center have similar programs in place.

Here in Florida, considered by some to be the “Wild West” when it comes to medical malpractice, many insurance carriers have bailed on their clients and have pulled out of the state. In addition to that, physicians have become tired of the constant stress of practicing defensive medicine and feeling like every new patient is a potential lawsuit plaintiff.

One thing that our practice started doing over three years ago is requiring a binding arbitration (BA) agreement on every patient prior to an elective procedure. One of the requirements of this process is that a practice’s liability carrier must support binding arbitration – and in our case, FPIC does. In fact, their legal counsel worked closely with our physicians to help develop the process as we were one of the first practices in Florida to take this path.

This forum is inadequate to cover all of the ins and outs of the binding arbitration process – how it works, how it is implemented, what about emergent cases, etc. But out of thousands of cases we perform each year, we have had perhaps a handful of patients who have refused to sign our agreement. They were then given a list of ophthalmologists in the area that they could be referred to.

Interestingly enough, we also use it for cosmetic surgery such as LASIK and have performed surgery on many attorneys after signing the binding arbitration. I asked them what they thought about the BA agreement and they usually reply that, if a case goes to arbitration, patients usually get larger awards.

They then ask me why we do it. I guess what most non-physicians don’t understand is that we don’t have a problem with an injured patient recovering damages – that is what malpractice insurance is for. What we find distasteful is the whole circus of the malpractice court cases with their lottery prizes and overly compensated plaintiff attorneys. In addition, for states like ours which have some sort of “three strikes’ provision, pretty soon you could end up with a lot of neurosurgeons and OB-Gyns at risk of losing their licenses.

Physicians interested in alternatives to medical malpractice jury trials should speak with their liability insurance company as well as their legal counsel and local medical society.

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