Forfeiting the right to sue

© The Medical-Legal News, 2007

The signing away of the constitutional right to a trial by jury is legal, and healthcare providers are not alone in asking for such waivers — credit card companies sometimes ask for such waivers as well, for example.

“It is mainly contract law between two parties,” says Annette Burgess of the O’Koon Hintermeister law firm in Louisville, Ky. “It has mostly been decided by case law.”

With regard to Kaiser Permanente of California, Diana Iversen, a nurse and legal nurse consultant, said, “Kaiser has the prospective member sign an arbitration agreement form prior to approval of membership and benefits.”

She adds, “I don’t currently work for Kaiser, but have done enough nursing in the emergency department for them. During the early ’90s I was on staff at a Kaiser facility in Southern California. During new employee orientation, we were given the skinny on the fact that members had to sign an arbitration agreement as part of their membership agreement. It is a well known fact in the community that Kaiser always goes to arbitration. They have to because they get sued so often. Then, in 2004 or 2005, I was told by an ER doctor that he could not act as a testifying expert because his contract with Kaiser expressly forbids it, making it a termination infraction of employment. He checked with management before telling me he couldn’t testify.”

Some courts have found arbitration contracts worthless, especially if they are rolled into numerous other forms, deceptively demanded of the patient or signed under duress. [See related story, above right]. 

Linda Gusch, a critical care nurse and legal nurse consultant in Spokane, Wash., relates from an experience, “When I was living in California, and I don’t remember what happened, I went to the ER at the hospital where I worked. When they brought over the admission paperwork, and consent for treatment, the clerk handed me the two sheets of paperwork, with one paper half covering the other one. When I lifted up the top paper I saw that there was a statement, of sorts, that said that if I were going to sue the hospital I waived all rights to a trial and agreed to binding arbitration if I did not initial the statement. If I hadn’t lifted up the top piece of paper, I would not have seen the statement to initial and would have agreed to it. It was as underhanded as that. I could not believe it.” •