stand it. To test it out, you might sit down with your young son or
daughter and have him read it. If he's able to tell you what it means —
"If I hurt you, we work together to solve the problem" — then it should
pass muster. Of course, you shouldn't draft any legal documents by
yourself. Resources such as a state medical society should be able to
provide assistance, and any healthcare attorney should be able to help
you set this up.
Anticipate pushback. Court records suggest Mr. King said he
wouldn't have signed the arbitration agreement if given the
option, which speaks to a frequent question posed by facilities inter-
ested in arbitration agreements: "What if a patient refuses to sign the
agreement?"
Rules differ by state, but in California, a physician in a non-emergent
context can choose not to treat a new patient if he refuses to sign an
arbitration agreement. If I were a physician making the decision, I'd
have no problem releasing that person into the market. You might have
some patients whip out a pen and modify the language if certain parts
don't apply to them, and you need to be prepared to deal with that pos-
sibility, too. One suggestion: Draft a list of FAQs to hand out to patients
when you give them the agreement.
Draft the agreement well. The court in this case did not hide its
disdain for the arbitration agreement signed by Mr. King, calling
it a "a harsh, one-sided and oppressive instrument." But a thought-
fully crafted arbitration agreement can provide valuable protections
for surgical practices and patients alike. It can save time and money
as well.
You rarely see the "runaway" verdicts often seen in litigated cases,
mainly because arbitrators tend to have less of an emotional response
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