Court of North Carolina. By a 4-2 decision, the court determined that
the surgery center failed to fully disclose the nature and importance
of the arbitration agreement to Mr. King when they gave him the doc-
ument to sign.
The moral of the story: If you're going to ask your patients to enter
into an arbitration agreement, make sure they understand the weight
of the document they're about to sign. Also, whether it's paper-based
or electronic, make the arbitration agreement a clear and separate part
of the intake process rather than disguised as just "another routine
document," as the Supreme Court described it in Mr. King's case.
Use simple, direct language. Mr. King — a man with no educa-
tional degree beyond high school and minimal experience reading
legal documents, according to court records — said he didn't under-
stand the language of the arbitration agreement. The trial court called
the agreement "poorly drafted, confusing and nonsensical." The lesson
here is to write your agreement so that even a fifth grader could under-
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questions and expedite the healing process. That's why we're
seeing more and more facilities embrace formal training pro-
grams to teach surgeons to sit down with patients and their fami-
lies to discuss the details of a complication: "Here's what we
believe happened, here's what we've done so far and here's what
we're going to do next."
In other words, having uncomfortable conversations that shed
light on the reasons for an unwanted outcome helps patients
move forward — and it may also prevent some patients from hir-
ing a lawyer to get answers for them.
— Devin O'Brien, JD
