A quick hallway huddle in the final few hours of the Legislature Wednesday appeared to solve one of the most contentious issues of the session — arbitration in medical disputes and who gets to pick the arbitrators.
"That was one of the quickest conference committees I've been to," Sen. Leonard Blackham said afterward. "Fast and furious."
The Republican from Moroni ran SB245, the bill eliminating mandatory arbitration of medical disputes.
The bill, once it is signed into law, would eliminate the ability of doctors to refuse medical service if a patient won't sign an agreement to settle any dispute via arbitration.
It is a response to controversy that surfaced last year as result of previous action taken by the Legislature that allowed doctors that option. While touted as a way to keep doctors practicing in high-risk areas such as obstetrics because it reduced the threat of "lottery-style" malpractice awards, advocates for patients decried the move.
The answer, in this session, was the emergence of two competing bills to change what happened last year. While advocates of patients' rights rallied around SB117 by Sen. Parley Hellewell, R-Orem, that measure never made it out of committee.
What did survive was the "compromise" promoted by Blackham under which doctors give up mandatory arbitration, but won concessions in other arenas — most notably a three-member arbitration panel and a shorter period in which patients have the right to rescind those agreements.
Doctors wanted a 10-day period for patients to change their minds, as opposed to the 30-day window in Hellewell's measure. They got it.
They also wanted a three-member panel, instead of one arbitrator that advocacy groups championed as a cheaper, more efficient and ultimately fairer process to ensure the decisions weren't "tainted" by the expertise of a physician.
Again, doctors prevailed with the three-member panel. The last-minute haggling centered on that panel and who would pick them.
It came down to each side in a dispute picking one arbitrator, and if both parties to the dispute can agree, they will mutually pick the third. If they don't agree, the two arbitrators will pick the third person on the panel.
While Hellewell said SB245 was a good measure in that it eliminated mandatory arbitration, he still doesn't believe the three-member panel will serve patients well.
Rather, Hellewell said having three arbitrators makes it unfair because of the medical expertise that will become part of the panel and ultimately have more weight than any patient concerns.
Hugh Matheson, spokesman for the Arbitration Alliance, said he believes the final negotiations ended with an "overall good result."
"Some doctors will still feel it is unfair that they should remain the only profession who cannot decide to refuse service because of someone not signing an arbitration agreement. But now it is incumbent upon us to explain what arbitration is and how it benefits both parties by saving costs."
Under SB245, patients will have the option of agreeing to arbitration as a method of solving a dispute with their health care provider should something go awry. Arbitration records will be public under the measure and providers will make clear that patients upset with medical care have the right to an attorney.
The measure does not preclude pursuing litigation in district courts or settling the problem through mediation, which is less formal than the two other avenues and typically much quicker.
Residents who signed mandatory arbitration agreements under the legislation passed last year can rescind those agreements via written notice with their provider. The rescission would become effective on the anniversary date of when the agreement was signed.