Asking Patients to Contract Away Their Right to Sue You, Part 1

        I know you may have looked twice at today’s newsletters title and wondered if something fishy was awry.  Let me assure you of no such thing.  Today I’d like to introduce a topic that hasn’t evolved in NY as it has in other states, which is, entering into arbitration contracts with patients.   Arbitration contracts between patients and doctors are absolutely valid and will be upheld when challenged so long as the contract is not a contract of adhesion.  
 
        Applicable NYS case law dictates that should it be determined a patient “made a conscious and deliberate decision to consent to arbitration where the agreement was [] set forth on a separate piece of paper and did [] alert the patient in large bold-type print that [the patient is] surrendering her right to litigate a malpractice claim before a jury”, and the patient is afforded “a reasonable period of time to reflect and deliberate whether the patient should have revoked the arbitration contract after it was executed” the agreement to arbitrate would be upheld. Sanchez v. Sirmons, 121 Misc. 2d 249, 253-255 (N.Y. Sup. Ct. 1983).
 
        Unlike other jurisdictions, Maine, Michigan, Ohio and South Dakota), New York have not adopted legislation detailing those contractual provisions required for a valid arbitration agreement. Relying on other jurisdictions and NYS case law, it is clear that NYS does not view arbitration agreements as against public policy, so long as protections are in place in the documents to ensure transparency and proper execution by the patient.

For additional information on this topic, contact Jennifer Kirschenbaum at (516)-747-6700 ext. 302 or at Jennifer@Kirschenbaumesq.com.

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