The "Ethicist" And The Scumbag Clause
First, a few words on mandatory arbitration from a previous blog item. I quote the National Consumer Law Center:
Companies alone select the arbitration service - often one dependent on them for repeat business. Those same companies often write the arbitration rules, and unsurprisingly those rules often demand complete secrecy about the proceeding and its outcome while limiting what evidence consumers can present. Consumers usually pay more for arbitration proceedings than they would for a public court proceeding. If they lose there's no appeal -- that means even legal errors in an arbitrator's decision are frequently beyond remedy. And if they refuse to participate in this rigged game these clauses often dictate they'll automatically lose the dispute with no further recourse....The business community loudly proclaims that these clauses are merely a private-sector alternative to the courts, a way of streamlining and speeding up the judicial process while controlling costs.
But one party to a public court proceeding doesn't get to pick the judge, write the rules, limit the evidence and demand that testimony and outcomes never come to light. Unlike many arbitrators, judges aren't dependent on one side for future business. And the costs of arbitration proceedings for plaintiffs at least -- according to a report by the consumer group Public Citizen -- are "almost always higher than the cost of instituting a lawsuit." It can cost a consumer several thousand dollars just to have a complaint heard - a situation that remains true today despite industry claims that arbitration fees have fallen. Public Citizen says such costs "have a deterrent effect, often preventing a claimant from even filing a case......high arbitration costs can be used to bludgeon an adversary."
How often do consumers come out on top? A Jim Hightower piece quoting Consumer reports said, in 19,000 cases by First USA, the consumer won only 87 times!
I know this, so I'm on guard against signing these things. I recently went in to Radnet's Tower Imaging (8750 Wilshire Blvd.) for an MRI (just preventive investigative care based on family history and, well, big boobs...nothing wrong with me), in the medical history pages they wanted me to fill out, there was a mandatory arbitration clause to sign.
Randy Cohen, aka "The Ethicist," whose ethics, reporting efforts, and thinking I too often find substandard, writes about this in his NYT column today, about a woman who says her gynecologist of seven years "has begun requiring patients to waive their right to a day in court and to accept binding arbitration to settle any potential disputes, or she will not treat them." She adds that she "sought care elsewhere but discovered that nearly all ob-gyn practices in the area make the same demand." She then asks, "Is this policy ethical?"
Cohen responds:
It is not. The law may allow it, and (except in an emergency) medical ethics permit doctors to choose their patients, but a doctor's criteria for choosing are still subject to scrutiny. Your doctor has instituted a dismal policy that compels patients to surrender a basic legal right in order to receive medical care.If a single physician were so skittish about malpractice suits (or so uncertain of her own skill) that she would see only patients who would forgo access to the courts, no problem: you could walk down the street to another practitioner.
But if all, or nearly all, doctors make the same demand, there's nowhere else to go; a fundamental right is eradicated. Conduct that is merely inconvenient if pursued by a few people can become intolerable when widely adopted.
Your gynecologist might reasonably insist that patients try mediation as a first step. But she may not, even inadvertently, be part of a group action to bully patients into surrendering access to our legal system.
There are some rights we can be pressed into waiving. Confidentiality agreements limit our ability to express ourselves; noncompete agreements limit our employment choices. Other rights are sacrosanct. We may not sell a kidney or work for less than the minimum wage or hire a guy to shoot us in the kidney for $2 an hour.
The right to our day in court should be among the inviolable.
Well, yes, but you haven't really solved her problem, bunwad. Not that she asked you to, but I never let that stop me.
As an advice columnist, I sometimes notice that people are asking me the wrong question; sometimes because they don't know the right question to ask.
In this case, my question would have been whether she really was required to do this, or whether she just assumed she was.
Personally, I don't give up my rights lightly. I find it unpatriotic, first of all. I'm reminded of (what may be) Ben Franklin's quote (which is actually misquoted as it's usually used, and is probably correct like so):
Those who would give up ESSENTIAL LIBERTY to purchase a little TEMPORARY SAFETY deserve neither LIBERTY nor SAFETY.
Back at Tower Imaging, I glared at the form. I'd already given up half a writing day to drive across town and sit there. Also, I was sent there by Kaiser, my HMO, so I wasn't sure whether I had a lot of other options. Plus, I'd been denied this MRI by Kaiser for a few years. I brought studies to my doctor that showed, due to family history, and what you could call the "big dense boob factor" (my chest, not me, thanks!), that I should have a breast MRI.
She denied not only the MRI (which she called "experimental" -- which it wasn't), but any lookage beyond a mammogram. Which was wrong, especially considering the mammographer herself looked at the boob pix she'd taken and told me it would be hard for a radiologist to see much of anything in there.
I pressed and pressed, and after crying in an appointment out of frustration, writing her two letters and screaming at her on the phone after the second ("Is this the care you'd give yourself if you had my family history?!"), she agreed to send me to a breast surgeon and let that person make the determination.
Well, that person gave me an ultrasound, a biopsy (I'm fine!), and the BRCA gene test, which can cost between $300 and $3,000, and which showed I'm not a carrier.
I still felt an MRI would be wise preventive care. Not that I like getting medical intervention of any kind, since the only medical problems I seem to come down with are iatrogenic -- caused by doctors, like the negative cognitive and memory effects of the anesthesia (Versed/midazolam/"conscious sedation") I suffered after a "let's just make sure" endoscopy.
I switched doctors, and persisted in pressing for a breast MRI, and my new doctor sent me to another breast surgeon. It was several years later, and Kaiser had finally caught up with the studies I'd read on MRI's for breast cancer detection. The breast surgeon was the one who'd sent me over to Tower Imaging, perhaps because Kaiser's facilities were too full to accomodate me.
Again, spending years pressing for this, driving across town in traffic (a big deal for me), and killing half a writing day, I wasn't exactly eager to get up and go away on principle. Still, either you're principled or you're not, and I've decided to live principled, so I looked at the form and tried to figure out what to do: How could I be principled, yet not endanger my health?
Was the best course of action to tell them I wouldn't sign it and get into a discussion/argument with somebody there? Hmmm...probably not. I decided to not sign it and see whether they'd maybe not notice. Also, I felt it was possible that they wouldn't force people to sign the agreement (did they really want the kind of press that could come out of that sort of thing?), but wouldn't tell people it was optional.
I'm not sure which was the case, but I handed my paperwork back in and got my appointment just the same. A sweet elderly couple was across from me, and I talked to them about the paperwork. They said they had been coming there for quite some time and saw no reason to sue. I said that I was not a litigious person, and didn't live life like a frightened mouse, but felt it important to guard my rights and not give them away.
That's the unasked question and the ungiven advice in Cohen's column: Did she really have to give up her rights to get care? Like me, he only writes one column a week. I do that because I put a lot of research and thought into my work. Apparently, he thinks he can get away with a lot less. And, apparently, does.
Dear Goddess
Bright, Talented, and Beautiful as well, Goddess indeed.
P.S. BRAVO, enough said.
A. Thomas Haddix at March 30, 2008 4:34 AM
Merci.
Amy Alkon at March 30, 2008 4:44 AM
We strive for a fair adjudication of our conflicts.
From OB/GYN perspective, the courts aren't fair, because plaintiff lawyers can venue shop, judge shop, and jury shop, until the deck is stacked against the medical provider. We need to have a better selection process for juries/judges (professional jurors?).
I don't think signing those forms while waiting for a procedure would preclude you from suing if the doctor/clinic really screwed up.
doombuggy at March 30, 2008 6:09 AM
I don't think signing those forms while waiting for a procedure would preclude you from suing if the doctor/clinic really screwed up.
Actually, they would. That's their purpose. You give up your right to go to court, and agree to go to arbitration, see details above on how the deck is usually stacked against the consumer in that.
Amy Alkon at March 30, 2008 8:31 AM
Here's more on this:
http://consumerist.com/consumer/consumer-action/jordan-fogal-responds-to-your-comments-about-the-rotten-lemon-tremont-homes-sold-her-291854.php
Amy Alkon at March 30, 2008 8:37 AM
And more:
http://consumerist.com/consumer/confessions/arbitration-firms-are-godless-bloodsuckers-306136.php
Amy Alkon at March 30, 2008 8:39 AM
There is another issue here, yet more support for my idea of the "medical VISA card".
When doctors do tests, there is a professional disconnect between the doctors and the technicians, and a professional "cusp" at each point of discovery offered by the results of each test. I'll use myself as an example.
I was attacked by some sort of bug that numbed my left arm, then was extremely painful. It's similar to Bell's Palsy, a virus with an affinity for just one nerve bundle on the right side of the face. Of course, I went to a doctor, who sent me to specialists. The nerve response tests involve sticking needles in you, then shocking you and recording the response times. Since I sought a second opinion, unsatisfied with the first testing, I endured that twice - you come off the cot jerking to the pain - only to be told each time that, "there's some delay there". The doctors administering each test simply left each time. I never got a chart, no paperwork, nothing.
So I get an MRI at the local imaging center. To my disgust, the tech doesn't know the resolution of the machine, apparently being a button-pusher. This time, I did get a copy of the pictures - and they're low-enough resolution that anything can be inferred. I then got two surprises: the radiologist was in Bradenton, Florida, some 500 miles away, where he apparently does his job over the Internet - and I was billed $50 for each eye for an "eye exam", consisting of a single question: "Have you ever had surgery on or an object professionally removed from an eye?".
I sent a protest letter to BCBS, which was waved aside by some functionary who saw nothing wrong with that process.
So. This was my first personal experience with the medical profession shunting me around to see multiple people for the same problem. I had seen the Byzantine billing process before when my late mother was hospitalized (apparently, if you work in the hospital, you get your name on everybody's bill), but didn't realize how poorly the pros communicate with each other. So. I can guarantee that if had to conserve funds, not counting on my apparently-bottomless BCBS account through work, I'd have done the same thing I intend to do regardless the next time I get involved with the process: get the names of everyone involved, what they're doing, where they work and what they charge. I've been stupid once too often.
But let me push some of the gloom aside by noting that it's only appropriate that a woman of your... stature... would require "tower imaging". Glad to hear they're OK!
Radwaste at March 30, 2008 9:28 AM
I hate going to doctors or hostitals, but on one of those forced visits, I had someone put a piece of paper like that in front of me. I glanced it over and quickly wrote in the signature line, "I'm not signing this". The nurse took it and saw some writing there, thought it was my signature and filed it away.
I have dated a few nurses over the years and from what they tell me, the one thing you are most likely to die from in a hostital is the result of an error in your hostital care. Infections are the most common. I had a friends wife who went in to have a small lump on her elbow checked out, next thing you know, she has sepsis. An extremely dangerous infection and she barely survived it. Hostitals actually kill more people than cancer or car accidents every year. I'll take my chances with the road.
Bikerken at March 30, 2008 11:52 AM
Brilliant idea.
I am grateful to those who provide good or excellent care, like the nurses at Cedars who took care of Cathy Seipp, but I think too many people are too trusting of doctors and the medical care system.
I talked to my former advice lady partner and late friend Marlowe Minnick's friend Tom C. last night about her death: she stopped breathing in an asthma attack and was intubated wrong by the EMS crew, so the oxygen went into her stomach instead of her lungs. She got brain damage and later died.
Amy Alkon at March 30, 2008 12:04 PM
I think the phony signature "I am not signing this" or "Donot Agree" is probably the best way to go. As is striking out any clause you don't like.
Let them be the ones to have to speak up and object.
I've also been "surprised" with the glib answers from "the ethicist". With not a whole lot of data points, I've learned to be careful about anyone that sets themselves up as the ethical standards bearer.
"The nerve response tests involve sticking needles in you, then shocking you and recording the response times." -- I've had that done! Yeouch!
Amy, I hope you find the answers you need and good for you (and thank you) for demanding answers and demanding treatment. In my experience, however, there is no test better than a third party manual breast exam. I know of several people that will waive any fees depending on the case.
These tests can often be combined with the electric needle nerve testing at the same time.
jerry at March 30, 2008 2:17 PM
>>>>...You give up your right to go to court, and agree to go to arbitration, see details above on how the deck is usually stacked against the consumer in that.
'Giving up rights' is something reviewable by the courts. As one commenter from the links said, "...to my knowledge, you do not have the ability to sign away your rights guaranteed by the Constitution. As such, I would think a binding arbitration clause that forces you to surrender your right to have a dispute taken to trial by peers would not be enforceable to begin with."
doombuggy at March 30, 2008 2:45 PM
You are so right. It is absolutely unethical for Randy Cohen to advertise himself as an authority on ethics when his only education is a music degree.
I studied Ethics for Public Administrators in graduate school, and there was so much to learn just about that one area of ethics (for pulic servants, public administrators, politicians, and citizens).
At the very least, a professional ethicist should have studied Ethics in college, including Ethics for Public Administrators in graduate school.
Write to the New York Times and tell them it's time they raised the bar back to where it used to be, before they were subjected to continual embarrassment due to incompetent writing/reporting/editing by their staff.
Ethix at March 30, 2008 2:58 PM
Amy Alkon
https://www.advicegoddess.com/archives/2008/03/the-ethicist-an.html#comment-1536459">comment from EthixI don't think a degree in something necessarily qualifies a person for a career in a field, nor do I think the lack of a degree means a person is unqualified. That said, I frequently find fault with Cohen's answers.
Amy Alkon at March 30, 2008 3:12 PM
Testing
doombuggy at March 30, 2008 4:31 PM
When you have a legal question about arbitration, try to notice something the people who write the forms didn't: it can be duress to require such a condition of admission. My surprise in this case is due to the fact that the lawyers, trying to protect from frivolous suits, apparently didn't note this important legal property.
Radwaste at March 30, 2008 5:17 PM
Are you really criticizing Randy Cohen for not answering questions that nobody asked him and for actually answering the one that was asked in a straightforward way? That's silly.
Dan at March 30, 2008 5:59 PM
There are only two questions I have when I go to a doctor:
1. What are you going to stick in me?
2. Where do you think you're going to stick it?
If I can figure the answers to these two questions out in advance, I can mentally brace myself for the shock.
Bikerken at March 30, 2008 11:31 PM
One of the scientists I work with insists on getting copies of everything, every time she goes to the doctor's office, regardless of what it's for. She told me that one time, one of the nurses told her she couldn't have her records, and she told the nurse, "oh yes I can and you will give them to me right now, because I am the patient, and those are my records"! The nurse got all flustered and asked if the sicentist was planning on leaving the practice! She said, "yes, if all I am to you is money! I'm the patient here, remember??"
She got her records. Changed doctors, too.
Flynne at March 31, 2008 5:53 AM
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