Doctors and medical facilities are using them in an effort to limit their liability. Should therapists?
As I often tell my students, a client can sue their psychotherapist for anything. It doesn’t mean the client will win, but they can sue. Even if you as the therapist have done everything right, staring down a lawsuit can be incredibly stressful and time-consuming. It’s little wonder that health care professionals would want to find any way possible to avoid that risk.
Of course, it’s also true that patients should have the right to seek justice if they truly do believe they have been wronged by incompetent practice. In order to balance patients’ rights with the desires of health care professionals to limit their liability, across the health care spectrum an increasing number of health care facilities and providers are including arbitration clauses in their informed consent documents. In fact, according to the California Medical Board, physicians can refuse to take on patients who are unwilling to sign an arbitration agreement. These clauses are considered a potential means of reducing exposure to malpractice lawsuits, and even minimizing negative online posts about a physician. Therapists certainly don’t want to get sued, and we also aren’t especially fond of people writing negatively about us online. Should therapists include arbitration clauses in their treatment contracts?
In an arbitration agreement, patients agree that if they have a problem with the service they receive and they can’t resolve it through whatever normal processes are in place (like a clinic’s grievance policy), they will go through a binding arbitration process rather than going to court. Under these agreements, the arbitrator — an independently certified third party — will hear both sides of the dispute and decide what the proper settlement should be. In effect, the arbitrator becomes both judge and jury for a process that occurs entirely in private, rather than the public venue of a court of law. In fact, if the patient signs an arbitration agreement at the beginning of treatment, they typically can’t go to court later, even if they think the arbitrator got it wrong. Courts will usually dismiss such suits, citing the arbitration agreement, unless there’s some egregious problem with the arbitration clause.
Given the privacy and expediency of the process (arbitration typically is much faster than a lawsuit), I can see where it would be tempting for therapists to start using these kinds of clauses in their contracts. Still, I don’t think these are likely to catch on in a big way in the therapy community. There are a number of reasons why therapists might actually prefer to be sued rather than going through arbitration. Writing about doctors who also have been resistant to such clauses, Alex Stein at Harvard notes (I’ve changed his terminology here to reflect therapists, but the concepts are his):
- Therapists may need to call specific attention to an arbitration clause in their contract, to ensure that patients can’t later claim it was hidden from them. Calling such attention to this may create suspicion in patients.
- Arbitrators want to get hired again, and they want to be perceived as fair. So they lean toward compromise decisions rather than handing one side or the other a clear victory. That can be tough on therapists who want a clear determination of right and wrong.
- Payouts made pursuant to liability claims often must be reported to the therapist’s licensing board, depending on state law and the amount of the settlement. That payout then can become public information. No provider wants to be listed among those who have paid out for malpractice, especially if the therapist feels they did nothing wrong.
Stein notes in his piece that courts actually offer doctors a pretty good deal: Doctors “can defeat weak malpractice suits summarily and strike settlements with plaintiffs whose suits survive a motion to dismiss.” The same is true for therapists. It ultimately seems to me (and as I mention over in the right column, I’m no lawyer, so hey, grain of salt) that most therapists would be better served by risking the time and stress of a court process than by the gray outcomes, and suspicion generated among clients, that result from having an arbitration clause.
# # #
Don’t like something here on the blog? Don’t sue me! Comment about it instead. You can post your thoughts in the comments below, by email to ben[at]bencaldwell[dot]com, or on my Twitter feed.