Withering Rights

By Wakefield, Julie | The Washington Monthly, September 2001 | Go to article overview

Withering Rights


Wakefield, Julie, The Washington Monthly


How mandatory arbitration clauses erode civil protections and will make the Patients' Bill of Rights meaningless.

WHEN MAUREEN ALEXANDER'S male HMO doctor removed her gown and stuck her breasts and pelvic area with a safety pin for no apparent medical reason, she was understandably outraged. Worse, her HMO, Blue Cross of California, refused to discipline the doctor. So Alexander decided to take her insurer to court. After all, she had visited the neurologist complaining not of breast and pelvic problems, but of neck pain and a tingling sensation in her arm that started after a car accident. But Alexander soon learned she had unwittingly waived her right to a jury trial when she enrolled in the health plan. The fine print of her contract mandated that potential disputes be resolved through arbitration.

The arbitrator, supposedly a neutral third party, found in favor of the HMO last year. Alexander complained to the California court of appeals that the arbitrator showed bias against her and wrongfully limited the discovery process. But the court ruled that it didn't matter whether or not the arbitrator made "an erroneous decision." The mandatory arbitration clause in her health plan made the arbitrator's ruling final.

The issue of whether patients like Alexander ought to be able to sue their managed health care plans or be forced to settle disputes in arbitration is at the center of the battle over the so-called "patients' bill of rights." This month, a House-Senate conference will try to reconcile competing versions of the bill. Partisanship may get in the way of a deal. But because Republicans and Democrats at least now agree that patients ought to be able to sue their health plans, everyone now assumes any compromise reached will surely give patients that right.

But everyone is wrong. Arbitration clauses, like the one that Alexander unknowingly signed, are already embedded in scores of health plans. If the conference bill doesn't make them illegal--and the betting is it won't--then such clauses will spread like computer viruses to thousands of other health plans, denying members the right to sue as a condition of receiving coverage, and undermining the protections Congress intends to enshrine.

That's just the tip of the iceberg. Mandatory arbitration clauses now show up in just about any contract the average person is likely to sign. Have you bought a new TV recently, purchased a home, or taken a new job? Better check the fine print of your service contract, closing papers, or employee manual. You may already have given up your right to sue for damages if your TV set blows up, your roof collapses, or your boss sexually harasses you.

Of course, there is plenty wrong with the litigation system and the sometimes hair-trigger willingness of Americans to sue. There's also much to be said for arbitration. Done right, it can provide speedy relief to the aggrieved, without lawyers raking off half the proceeds. And arbitration clears up our overburdened court system. But arbitration tends to work only when both parties enter into it voluntarily, or when a judge, having reviewed the case, mandates it. Either way, parties have access to the judicial system if arbitration breaks down.

What's new and insidious about mandatory arbitration clauses is that they block off all access to the courts, even before disputes arise. In doing so, they create all kinds of perverse protections for corporations bent on screwing the average person.

Binding arbitration is nothing new. The practice dates to the 15th century and, at this nation's founding, mandatory arbitration clauses were already common to business transactions despite Thomas Jefferson's and other founding fathers' disdain for them. The 1925 Federal Arbitration Act limited the legal use of mandatory arbitration clauses to maritime and commercial trade employment contracts. But in 1985, the U.S. Supreme Court ruled that such clauses were enforceable in other kinds of employment contracts. …

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