In a bind

As part of the tort reform legislation passed earlier this year, Gov. Bob Taft signed into law significant improvements to the statute concerning agreements between health care providers and patients when submitting medical malpractice disputes to binding arbitration.

In order to be valid and enforceable under the revised law, arbitration agreements must:

* Be entered into prior to patients receiving any diagnosis, care or treatment.

* State that patients have the right to withdraw their consent to arbitrate within 30 days after signing the agreement.

* State that the decision to sign is solely a matter for the patient’s determination, without any other influence.

* Provide that the arbitration expenses will be divided equally between the parties.

* Not be submitted to patients whose condition prevents them from making rational decisions regarding arbitration.

* Inform patients they are waiving any right to a trial in court or a trial by a jury.

* State that patients have been informed that their diagnosis, treatment or care will not be conditioned upon signing the contract.

* Provide for a panel of three arbitrators, only one of whom may be a physician.

* Be submitted to patients separately from any other agreement, consent or document.

The combination of requiring the agreement to be signed before care is provided and assuring the patient’s ability to make rational decisions prevents arbitration agreements from being used in most emergencies and by physicians in some inpatient settings.

The law applies to hospitals, physicians and other health care professionals but not to health care providers such as free-standing outpatient facilities or long-term care facilities.

More important, it substantially shortens the time a patient has to revoke consent to arbitrate. Under prior law, a patient had 60 days after discharge from a hospital or termination of the patient/provider relationship to rescind the consent to arbitration. This limited the utility of arbitration agreements in Ohio.

Now, a patient has only 30 days after the contract is signed to withdraw consent to arbitrate.

The law contains a form arbitration agreement that is presumed valid and enforceable in the absence of strong evidence that the execution of the agreement was fraudulently induced, that the health care provider willfully or negligently disregarded the patient’s right not to execute the agreement or that the patient was unable to effectively communicate in the language in which the agreement was written.

The changes in the law were effective April 11, 2003.

While binding arbitration agreements are no cure for the medical malpractice crisis in Ohio, they warrant careful consideration as part of any comprehensive risk management strategy. Shawn M. Lyden is a partner with Brouse McDowell. Reach him at (330) 535-5711 or [email protected]