A Utah lawmaker has decided to step up his opposition to Intermountain Health Care's mandatory arbitration agreement for patients by seeking to repeal, instead of change, a state law that allows those agreements in the first place.
Meanwhile, a group of malpractice attorneys might sue IHC over the issue.
These latest wrinkles in the controversy over IHC's arbitration plan come as its opponents prepare to picket the Legislature when it convenes Monday. In the meantime, IHC is ramping up its pro-arbitration efforts with a thick news media packet and offers of press interviews.
Sen. Parley Hellewell, R-Orem, plans to sponsor a bill to undo the law allowing mandatory medical arbitration. Previously, Hellewell had said he would ask the Legislature to modify the law. But after appearing Thursday night at a meeting of the Utah Citizens Alliance, Hellewell decided that "changing (the law) is not going to solve the problem. So I'm just going to go for the repeal."
But proponents of arbitration will lobby hard against it, saying the Legislature did the right thing last session in passing the law.
"What they did last year is create a time for arbitration and to have a chance to show how arbitration is effective in a dispute. So what you got is a few vocal attorneys who make their living by trying these cases, and they're trying to stir up an issue here," said Hugh Matheson of Arbitration Alliance, a group of proponents. "They did the right thing last session."
The law, passed last year, allows a health-care provider and patient to negotiate an arbitration agreement in nonemergency situations. The legislation, sponsored by Sen. Leonard Blackham, R-Moroni, also says that health-care providers can choose not to treat patients who refuse to sign mandatory arbitration agreements. By signing the agreement, a patient agrees to settle any non-emergency medical malpractice disputes through arbitration rather than through the courts.
What finally convinced him to seek the repeal, Hellewell says, was reading a study in 1998 by the American Medical Association, the American Bar Association and the American Arbitration Association stating that mandatory medical arbitration violates principles of "fundamental fairness."
Lobbyists for IHC did not mention this study last winter when the arbitration law came before the Legislature, according to Hellewell.
The attorneys planning to sue IHC say the lawsuits will be moot if the Legislature repeals law. If there is no repeal, the litigation may take several forms, according to malpractice attorney Brad Parker.
"There's certainly going to be litigation contesting the coercive nature of the agreement," Parker says. "Even though IHC claims the agreement is voluntary, people are being presented with these (arbitration) documents while they're sitting in a doctor's office with a child who has an ear infection, so the choice really is get the ear infection treated or not. It's either sign it or go home. And that's a coercive agreement."
The attorneys have not yet decided, Parker says, whether they will sue on a case-by-case basis or whether they will seek a class action lawsuit.
An IHC spokesman referred all comment to Arbitration Alliance, saying it is an industry issue.
Proponents argue medical arbitration is fairer, faster and cheaper than taking malpractice issues to court, and argue that court costs and large jury awards to patients are driving up both malpractice insurance premiums and total health-care costs.
"The general public is uncomfortable with the skyrocketing cost of health care. The concern is doctors who are not performing certain services any longer because of malpractice insurance cost. It is a real problem that most people recognize. And arbitration is effective in reducing some cost," Matheson said. "It's a fair and most effective way to settle disputes."
Opponents disagree.
Medical arbitration "seemed like a good thing to help high medical costs," said Hellewell, explaining why he voted for last year's bill. "It might have been OK if IHC hadn't made such a strong, mean contract."
Opponents plan to picket on the Capitol grounds at 10 a.m. Monday.
Contributing: Donna Kemp Spangler
E-mail: jarvik@desnews.com