DISTINCTIVE Make the arbitration agreement a clear and separate part of the intake process so patients know exactly what they're signing.

When a patient signs an arbitration agreement, he gives up his right to a jury trial before the surgeon lays a hand on him — and the surgeon dodges the prospect of a medical malpractice lawsuit. But as an ongoing case out of North Carolina shows, these agreements aren't as ironclad as they might seem.

In January, the Supreme Court of North Carolina decided that a patient and his wife could pursue a malpractice claim against a surgeon and his practice over injuries sustained during a hernia repair performed in 2009 — even though the patient signed an agreement to engage in "alternative dispute resolution" in the event of any dispute arising from the surgery (osmag.net/Ub4ShB). Here are 4 lessons we can take away from this case.

1Be up front. One reason the court let this case go to trial was the fact that the surgical practice, Village Surgical Associates of Fayetteville, N.C., lumped the arbitration agreement in with several intake forms while the patient, Robert E. King, was in for a pre-surgical consult. Mr. King later acknowledged that he didn't read any of these documents, believing them to be "a formality."

None of that would have mattered much had the surgery to repair a bilateral inguinal hernia been uneventful. But during the case, the surgeon injured Mr. King's distal abdominal aorta, which resulted in abdominal bleeding. The surgeon was able to repair the injury, but the remedial procedures that followed led to the occlusion of an artery, a thromboembolism in the right leg and acute ischemia in the right foot, according to court records.

In September 2011, Mr. King and his wife filed a complaint against the surgeon and the practice, seeking damages for medical malpractice. In turn, the defendants filed a motion seeking to have further litigation stayed and the arbitration agreement enforced. The plaintiffs then argued the agreement was unenforceable because the hiring of 3 arbitrators, as stipulated in the agreement, would create a financial burden.

For several years the case went back and forth between the trial court and the Court of Appeals, until it found its way to the Supreme Court of North Carolina. By a 4-2 decision, the court determined that the surgery center failed to fully disclose the nature and importance of the arbitration agreement to Mr. King when they gave him the document to sign.

The moral of the story: If you're going to ask your patients to enter into an arbitration agreement, make sure they understand the weight of the document they're about to sign. Also, whether it's paper-based or electronic, make the arbitration agreement a clear and separate part of the intake process rather than disguised as just "another routine document," as the Supreme Court described it in Mr. King's case.

2Use simple, direct language. Mr. King — a man with no educational degree beyond high school and minimal experience reading legal documents, according to court records — said he didn't understand the language of the arbitration agreement. The trial court called the agreement "poorly drafted, confusing and nonsensical." The lesson here is to write your agreement so that even a fifth grader could understand it. To test it out, you might sit down with your young son or daughter and have him read it. If he's able to tell you what it means — "If I hurt you, we work together to solve the problem" — then it should pass muster. Of course, you shouldn't draft any legal documents by yourself. Resources such as a state medical society should be able to provide assistance, and any healthcare attorney should be able to help you set this up.

QUESTIONS AND ANSWERS
How to Talk About Adverse Outcomes

FORTHCOMING If a complication occurs, having a surgeon explain the details to the patient may help to prevent the complication from turning into a claim.

Avoiding malpractice claims starts with having a comprehensive and well-documented informed consent process. With every patient you need to spell it out: "This is how the procedure is performed, and these are the recognized and known complications that could result."

If an adverse event does arise and the patient's family asks how an infection or some other complication arose, you can refer back to informed consent: "Remember when we talked about the risk of infection and even death? The good news is that your father didn't die, but there was a complication that we have fixed and he's recovering now."

Most people trust and want to like their healthcare providers. Having surgeons who are comfortable talking with patients and their families about unanticipated outcomes helps to answer questions and expedite the healing process. That's why we're seeing more and more facilities embrace formal training programs to teach surgeons to sit down with patients and their families to discuss the details of a complication: "Here's what we believe happened, here's what we've done so far and here's what we're going to do next."

In other words, having uncomfortable conversations that shed light on the reasons for an unwanted outcome helps patients move forward — and it may also prevent some patients from hiring a lawyer to get answers for them.

— ???Devin O'Brien, JD

3Anticipate pushback. Court records suggest Mr. King said he wouldn't have signed the arbitration agreement if given the option, which speaks to a frequent question posed by facilities interested in arbitration agreements: "What if a patient refuses to sign the agreement?"

Rules differ by state, but in California, a physician in a non-emergent context can choose not to treat a new patient if he refuses to sign an arbitration agreement. If I were a physician making the decision, I'd have no problem releasing that person into the market. You might have some patients whip out a pen and modify the language if certain parts don't apply to them, and you need to be prepared to deal with that possibility, too. One suggestion: Draft a list of FAQs to hand out to patients when you give them the agreement.

4Draft the agreement well. The court in this case did not hide its disdain for the arbitration agreement signed by Mr. King, calling it a "a harsh, one-sided and oppressive instrument." But a thoughtfully crafted arbitration agreement can provide valuable protections for surgical practices and patients alike. It can save time and money as well.

You rarely see the "runaway" verdicts often seen in litigated cases, mainly because arbitrators tend to have less of an emotional response than do members of a jury. Arbitration can also be less expensive because you typically don't have to spend as much on legal fees and expert testimony.

There's also the issue of time. With arbitration, you are the master of your own calendar. You're not at the mercy of the courts, where delays are commonplace. For a surgeon and his staff, getting ready for a trial is an immersive process, so it can be extremely frustrating, time consuming and expensive to gear up for a trial only to have your court date continued. By comparison, arbitrated cases tend to get resolved quickly, which is good for all; a patient doesn't like having an unresolved claim hanging over him any more than a surgeon does, and meritorious claims get resolved and paid faster.

Most practices that opt for arbitration aren't trying to deceive anyone; they're focused on mitigating risk and reducing their exposure. If you're interested in doing the same, just take the time to make sure you're entering into the agreement on solid legal footing. OSM