Hospital's waiver concerns lawyers

Hospital's waiver concerns lawyers

February 26, 2007
The Times Leader, Wilkes-Barre, PA

By TERRIE MORGAN-BESECKER

WILKES-BARRE - A medical waiver utilized by a local hospital has come under fire from two area attorneys who fear patients may be unwittingly signing away their rights to seek a jury trial if they are injured through malpractice.

Kindred Hospital of Wyoming Valley, a long-term acute care facility, has been asking patients to sign a waiver that would mandate any claim for injuries go through mediation or binding arbitration - alternative legal processes that can be utilized in lieu of filing a lawsuit.

The hospital maintains the waiver, which is voluntary, benefits patients and the hospital by allowing for faster resolution of malpractice claims. But lawyers who reviewed the document say they're concerned it's being presented to patients who, because they're under duress due to their illness, might not understand its implications.

"It's presented to a person in a highly emotionally charged situation," said David Saba, an attorney with Hourigan, Kluger and Quinn in Kingston. "The circumstances hardly lend themselves to cool rational thought."

Saba, a lawyer for 33 years, currently represents plaintiffs who have filed medical malpractice claims, but for most of his career he defended hospitals and doctors. He said he has never seen a waiver like the one utilized by Kindred.

Kindred operates a 36-bed facility that provides services for patients who need extended hospital care, such as those being weaned off ventilators or those in need of significant physical rehabilitation. The facility is located within Wilkes-Barre General Hospital, but it is not part of the Wyoming Valley Health Care System, said system spokesman Jim Schilling.

Schilling said Kindred rents space at General Hospital. The health care system does not utilize the waiver in question and has no control over Kindred's operations, he said.

Concern about the document was first raised by Paul Lyon of the Committee for Justice for All, a nonprofit group that advocates for patients rights. Lyon said he was "appalled" when he read it.

"I find this whole situation absolutely outrageous. These guys are preying on people who are vulnerable and clearly not in a frame of mind to make the kind of decision that could affect their legal rights forever," Lyon said.

Erin Pica, administrator of Kindred Hospital, defended the waiver as a fair, alternative means to settle disputes to the mutual benefit of patients and the hospital.

"It's binding arbitration on Kindred as well as the patient," she said. "If people don't want to sign it they don't have to. It's not a condition of admission."

Arbitration differs from a jury trial in that the case is heard either by a single arbitrator or panel of three who issue findings of fact and determine what, if any, monetary award is warranted. The process usually takes months, compared to the years it can take to resolve a lawsuit through the court system.

Pica said arbitration benefits the hospital because the faster resolution of cases reduces attorneys' fees. That expediency also benefits patients who, if they were injured, would get compensated much sooner.

She noted admissions counselors carefully go over the document to ensure patients understand it, and they do not attempt to persuade the patient either way. Patients also have a right to revoke the document within five days of signing it, she said.

"They have plenty of time to look at it and sign it or not sign it," she said. "We encourage them, if they have any questions, if they want to take it to a lawyer, they can do that."

But Saba questioned how many patients, or family members of patients, would take that step. He's concerned many patients will just blindly sign as part of an admissions packet.

"People sign where they're told by the admissions person. Unless something happens they never look at it again," he said.

He's also concerned that the document is being explained by an admissions person, rather than a lawyer.

"Someone who is not a lawyer is giving legal advice to people presenting themselves for medical treatment or their family member. ... Can you think of a time in your life you would be more susceptible to being swayed? I can't."

Martin Meyer, a Kingston lawyer who handles medical practice cases, said he supports arbitration in many types of cases. But he has serious concerns about utilizing the system in the way it's spelled out in the Kindred document.

Typically, Meyer said, parties do not get to arbitration until after a lawsuit has been filed and the facts of the case have been fully developed through pre-trial evidence gathering. The Kindred document has patients agreeing to going through that process before they're even treated.

"Before a person goes into the hospital, I think it's premature to sign something like this. I just don't know if it's fair under the circumstances," Meyer said. "The only one it helps at that point in the process is the hospital."

While arbitration has its benefits, it also has serious drawbacks, Saba and Meyer said.

"Binding arbitration is exactly what it means. The decision of the arbitrator if final, except in very rare situations where it may be set aside," Meyer said.

Kindred Healthcare operates various types of health care facilities nationwide, including five facilities in Pennsylvania. Pica said the form is utilized throughout the system. She said she has never heard of concerns being raised over the document, noting 75 to 80 percent of the patients at the Wyoming Valley facility sign it.

"I would hope if someone had an issue they'd let us know so we could address it," she said. "That's what we'd do with any concern that's raised, but we haven't had any come up."