As scary is it might be to go to a hospital in an emergency, most people do not regard it as similar to getting arrested -- a situation where your instinct would be to obtain the advice of a lawyer.
Yet when you go into a hospital, you are put in a situation where you have to sign a detailed contract -- sometimes in a hurry, sometimes just with swift officiousness that skips over the details with a series of "initial here" and "initial there" requests. But do you have any idea what you were signing, or the implications if something were to go wrong? You might have actually waived a constitutional right.
In that stack of papers you are handed are often sections that include agreements that you absolve the hospital of liability should something go wrong (because those providing care are contractors), and that you agree to choose an arbitrator to resolve any disputes instead of going to court.
Companies tend to favor arbitration to settle disputes with consumers rather than court, where there is a potential to collect larger judgments. Also, according to plaintiffs' attorneys, consumers risk more out of pocket through arbitration than if they hire a lawyer to represent the case in court on a contingency basis.
Businesses argue the process is more efficient and allows for the use of intermediaries with an expertise in that area to decide the case. "There are advantages to both sides in arbitration," said George Breen, an attorney at Epstein Becker & Green in Washington, who defends healthcare companies.
Those sections about responsibility and arbitration involve more than an automatic signature or initial, according to some attorneys who bring malpractice claims.
Still, 99 out of 100 people will sign the documents without regard to what they say, said Steven Stevens of the Law Offices of Michels & Watkins in Los Angeles. That is an estimate that both a healthcare defense attorney, and a former hospital administrator who is now a hospital patient consultant, agree is accurate. They also note that courts in different states might have different interpretations of the importance of a patient blindly signing one of those clauses, but that time could be spent in court hashing it out.
What should you do instead, the next time you go into the hospital, either for an emergency or a scheduled procedure?
1. Read what you are signing
Here is part of a clause appearing in several hospitals' admission forms: "Both parties to this contract, by entering into it, are giving up their constitutional right to have any such dispute decided in a court of law ... "
That, plaintiffs' lawyers say, is worthy of some extra thought -- but most likely will get skipped over because of the circumstances.
"You've got people that are at their most vulnerable and their most scared and when you go into an (emergency room), you're not thinking about malpractice," said Stevens. "You've got people signing things that they're not reading because they're told to sign them. You're not thinking about lawsuits, you're thinking about your health, your child's health -- and getting medical care."
2. Ask questions
Hospitals ought to take the time to explain these documents section by section, said Christina Thielst, a former hospital administrator who now is consultant for hospitals at Tower Strategies in California. But if they do not, ask questions until you understand. Thielst said she counsels hospitals to be clear with patients on what they are being asked to agree to. "You do want to make sure patients know what they're signing," she said.
Think about what you sign, before you sign, Stevens said. "Once your signatures are on those documents, you've given the hospitals a defense."
3. Make your stand
Much of the pile presented to the patient or a family member are items you do not really have any say over -- like being responsible to pay for what insurance does not. But Stevens and some colleagues believe the sections about arbitration and liability should be rejected.
Phil Michels, also of Michels & Watkins, said patients and their families should either write "do not understand" next to those two paragraphs or cross them out and write "do not agree." The two paragraphs could absolve the hospital of responsibility and would waive the right to court if the patient is harmed.
Thielst said it is rare that a patient will object to any of the provisions in the admissions forms. "I have ... just a couple of times learned that patient didn't want to sign that. The average person is signing everywhere they're told. They're not questioning it."
4. Be prepared to walk
Michels and Stevens point out that you only have the opportunity to reject those clauses while in an emergency room, for a true emergency, because federal law requires that treatment be provided under that circumstance. Breen agrees that hospitals would still have to treat someone who refused to sign those clauses -- as long as they were there for a true emergency. It is not enough to simply be in the ER.
But go in for a surgery or tests, and if you do not agree to their terms, "you're not going to get treated," Thielst said.
If you do sign the agreement, attorneys say all is not lost if you do end up making a claim. It just makes the road ahead more tangled.
(The author is a Reuters contributor. The opinions expressed are his own.)