If you ever looked at the boilerplate you signed with your streaming carrier or when you bought your dryer, you probably saw that you were limited to settling any disputes through arbitration, and perhaps you thought about a similar situation for your office so patients could not sue you if there was a problem.
However, you should consider whether such an agreement will hold up.
Let’s start with the fact that if a patient who is now a plaintiff challenges the agreement, it will be in front of a judge, who is sworn to the idea that people are entitled to their day in court. On a practical basis, judges like alternative dispute resolution methods like arbitration because they are efficient and shorten dockets, but they must be assured the plaintiff is not being stripped of meaningful rights.
The first issue that will be looked at, since an arbitration agreement is a contract, is whether there really was “a meeting of the minds” such that the patient knowingly and freely waived their right to go to court.
The next issue will be whether the agreement is inherently “unconscionable,” which basically means grossly unfair, even if the patient did agree to it. Unconscionability has two parts.
Procedural unconscionability refers to one side being powerless compared with the other, or the contract being sprung on them without notice and barring negotiation. If so, it is a “contract of adhesion” and will not be enforced.
Substantive unconscionability exists when the contractual terms are so one-sided that the agreement only benefits one party.
These will overlap, because overweening or one-sided substantive terms are themselves evidence of procedural domination.
These are the basics, but you will then have an even higher bar because you are a doctor and the law presumes that you, likely smarter and more educated than your patient and in the position to control access to care, have the dominant role in the relationship. The law will, frankly, presume a degree of procedural unconscionability.
To overcome that, you will need to show that you were extremely fair under the circumstances in which the agreement was signed.
This article was written by Dr. MedLaw, a physician and medical malpractice attorney.
