Understanding Arbitration The Doctors Company Arbitration Program Training
Overview • The Doctors Company does not require the use of arbitration • Arbitration is a physician decision • The Doctors Company will provide training tools to implement your arbitration program • Our goal–ensure you have all the information needed to decide whether or not to implement arbitration Arbitration Training / 2
Arbitration Is Not New • In use in CA since the 1920s • Is a valuable and viable alternative dispute resolution • Key to an effective arbitration program The agreement Arbitration Training / 3
What Is Binding Arbitration? • An agreed upon contractual method for resolving disputes between parties • Dispute is presented and resolved by a neutral party… the arbitrator • Decision by the arbitrator is binding to the same extent as a judgment in a court of law Arbitration Training / 4
Advantages of Arbitration • Early resolution of a dispute • May decrease stress and anxiety for both parties • Less interruption of business • Arbitrator has knowledge of complex standard of care and causation issues Lay jury must understand and form opinions based on competing expert testimony • Arbitration allows each party to put its dispute before knowledgeable, neutral arbitrators Arbitration Training / 5
Disadvantages of Arbitration • Discovery of facts does not occur unless each party specifically agrees to conduct discovery • Helpful information to defend or prove a fact may not be produced • For smaller claims (less than $5000) cost of arbitration may exceed the claim • Parties do not have an opportunity to their “day in court” Arbitration Training / 6
Disadvantages of Arbitration (continued) • Arbitrator may not follow prevailing law Decision based on equity or a sense of fairness and justice • Compromise awards are more common with arbitration than court decisions • If a party is unhappy with outcome, successful appeals are rare Arbitration Training / 7
Arbitration and Health Plans • Most CA health plans include an arbitration agreement • Some health plans may limit the use of arbitration • The physician should identify any issues related to the limitations of arbitration in each patient’s health plan prior to implementing an arbitration program • Some health plans may: Restrict or stipulate where arbitration will be conducted Require use of particular arbitrator Arbitration Training / 8
Implementing Arbitration • Understand the process • Train staff adequately • Choose a knowledgeable staff member to be lead • Train a backup person • Provide a consistent message to patients • Use statements such as “this is our usual and customary practice” Arbitration Training / 9
Implementing Arbitration (continued) • Prepare staff to respond to questions • Determine how your practice will respond to patient's refusal to sign the document Remember, you cannot refuse care • Be sure your patient can read • Provide a knowledgeable translator if patient cannot read English Arbitration Training / 10
Implementing Arbitration (continued) • Post a notice in the waiting room in advance of implementation • Implement the program on a specific date • Always ask if the patient has additional questions and whether he or she understands the arbitration document • File the form in the medical record Arbitration Training / 11
Implementing Arbitration (continued) • For patients you meet in the hospital, ask them to sign the agreement the first time they come to your office Patient may initial Article 6 of the agreement to make date retroactive to treatment previously provided Patient has the right to decline to sign the form Arbitration Training / 12
Commonly Asked Questions • May I require a patient to sign an arbitration agreement to receive care? No • May result in an adversarial interaction with the patient before care begins • CA case law holds that if patient can show s/he was pressured into signing an arbitration agreement as a condition of necessary medical services, the arbitration agreement may be ruled invalid (CPLH, 2008, Vol. 5, Section 36:31) Arbitration Training / 13
Commonly Asked Questions (continued) • If one physician in a group decides to use the arbitration agreement are all other physicians in the same group required to do so? Yes • There may be a conflict if one physician or allied health provider does not use the agreement, as in a call coverage situation. All of the physicians and allied health personnel within the group should agree whether or not to use arbitration before it is implemented. Arbitration Training / 14
Commonly Asked Questions (continued) • May a patient rescind the arbitration agreement? Yes • The agreement may be rescinded by the patient in writing within 30 calendar days of signing the agreement • Develop a consistent way to document when a patient revokes • Is a photocopy of the agreement valid? No • A valid agreement requires a notice regarding the implications of arbitration be printed in bold red type, which may not copy on a photocopy machine Arbitration Training / 15
Commonly Asked Questions (continued) • What if the patient does not speak or read English? Utilizing an English only arbitration agreement for a non-English speaking patient may not be enforceable If using a translator, be sure to document the name of the translator Arbitration Training / 16
Commonly Asked Questions (continued) • Who can serve as a translator? Use bilingual staff member or qualified interpreter • Physician must ensure that the interpreter is competent • Competency requires more than self-identification of being bilingual (CPLH-2008, 1:66) Family members are not recommended • Cultures vary • Family members might be unable to ask some questions • Translation may be incorrect Arbitration Training / 17
Commonly Asked Questions (continued) • When is the best time to implement an arbitration program in my practice? After you understand the arbitration process and have trained your office staff about the program • How do I get the arbitration forms? Forms may be purchased online through the California Medical Association (CMA), www.cmanet.org/resource-library Membership in CMA is not necessary to purchase forms • What if I change my mind and do not want to use the arbitration process? There is no need to contact The Doctors Company if you elect to discontinue the use of arbitration Arbitration Training / 18
Commonly Asked Questions (continued) • What if my staff has additional question? The Doctors Company is available to support you and your staff with implementation of the arbitration program. Please call the Patient Safety Department for additional support. 800-421-2368 ext. 1243 Arbitration Training / 19
Mission Statement 1-800-421-2368, ext. 1243 Our Mission is to advance, protect, and reward the practice of good medicine. For additional Patient Safety information, visit our Web site at: www.thedoctors.com and click on Patient Safety Arbitration Training / 20
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