In the 1980s, I had an eye-opening experience that at first seemed completely unrelated to my dental practice. To move some precious antique furniture across state lines, I hired a national carrier. During the move they lost a bench that went with a foot-pump organ. The piece had special value beyond its monetary worth. It was never found.
Seeking compensation, I soon learned I had agreed to binding arbitration, a legal technique unfamiliar to me. The moving company informed us that they were willing to arbitrate, if we wished. Or we could accept their offer of $75, which seemed a pittance, given what had been lost. We reluctantly accepted their offer. It was disappointing but the lesson I learned was invaluable to my dental career.
There is a powerful reason to initiate binding arbitration in a dental practice. While we know that unrealized expectations are the major cause of a patient seeking redress, the second cause of adversarial complaints stems from unpaid bills. Further, some who want to escape their dental billing threaten the office with legal action if their bill is not reduced or cancelled. It's an ugly fact of life and can cause a dentist a great deal of grief. The solution is to require payment at the time of delivery and to institute binding arbitration.
The process is simple. If a dispute arises, both sides pay a small fee to fund an experienced arbitrator. The parties may or may not be represented by a lawyer, and the process is quick, fair and private. Awards made in binding arbitration are generally considered to be more reasonable than jury awards. With HMOs and health care providers jumping onto the arbitration bandwagon, why not dentistry?
In 1986, in consultation with legal counsel, and the American Arbitration Association, our dental office fashioned a binding arbitration statement and began asking new patients to sign off on it. Our introductory health questionnaire and informed consent release forms carried this notation:
"I further agree that any dispute about the reasonableness or computation of fees, or any claim of negligent or intentional acts or omissions in the rendering of professional services, either in this instance or in any other treatment rendered by staff in this office, shall be submitted to binding arbitration under Chapter 679A of the Code of Iowa (1993). It is understood by both doctors and patient that by agreeing to submit all claims or assertions that either patient or doctor may have against the other, arising out of this agreement, patient and doctors have given up their right to a jury or a court trial."
The morning we launched this program, my staff was certain that I had lost it. They were sure – and I feared they might be right – that we would be forced to back down from this program. They dreaded what they assumed would be negative patient response.
Sure enough, on the first day a new patient refused to sign the statement and he walked. Upon reflection, we had doubts about that patient's intentions and concluded that his departure may have been in our best interest.
Since that single patient walked, tens of thousands of patients have signed our binding arbitration agreements. They are invited to sign twice – once when they submit their health history and again when they sign an informed consent form after watching an Informed Consent Video.
In the first article of this series, I counseled the use of Informed Consent Videos to prevent unwarranted litigation. The second nail in the coffin of senseless litigation is binding arbitration, because experience has shown that a considerable number of patients who want redress do so only to escape a payment due.
Legal in all fifty states, binding arbitration has freed the courts from messy lawsuits. Avoiding lawsuits helps us dentists immeasurably by not letting our reputations be publicly tarnished, which can happen regardless of a lawsuit's outcome.
After we inaugurated this option in my former dental practice, of those tens of thousands of patients, only one requested binding arbitration. We happily obliged. And for what it's worth, the finding was in our favor.
If a patient expressed a desire to lodge a complaint, we followed the admonition counseled in my first article: Use any means possible to defuse the situation. Offer an apology, remake or repair – whatever it takes to appease the patient. If they refuse to accept any of those tenders, then offer them a brochure that outlines how they may pursue binding arbitration.
Two national organizations can explain this simple process:
- net-ARB (internet-ARBitration) – www.net-ARB.com
- NFA (National Futures Association) – www.nfa.futures.org
Your starting point is to talk with your legal counsel to fashion a document that follows your state laws. Then, contact the two organizations listed, for help in finding an arbitrator if and when needed. net-ARB conducts its arbitrations by email, making it the more convenient of the two.
Binding arbitration is a powerful tool to insulate a dentist from litigious-minded patients and their counsel. Failing to raise this barrier is like practicing dentistry without professional liability insurance – a move no right-thinking dentist would even contemplate.
Article Three of this series will deal with the perils that lie within our dental staff. And there are many.Go back to main » Articles page.