Randy Cohen, the NYT Magazine Ethicist, today: " The gynecologist I’ve seen for seven years has begun requiring patients to waive their right to a day in court and to accept binding arbitration to settle any potential disputes, or she will not treat them. I sought care elsewhere but discovered that nearly all ob-gyn practices in the area make the same demand. Is this policy ethical? KATHLEEN WAGNER, PALM HARBOR, FLA.
It is not. The law may allow it, and (except in an emergency) medical ethics permit doctors to choose their patients, but a doctor’s criteria for choosing are still subject to scrutiny. Your doctor has instituted a dismal policy that compels patients to surrender a basic legal right in order to receive medical care.
If a single physician were so skittish about malpractice suits (or so uncertain of her own skill) that she would see only patients who would forgo access to the courts, no problem: you could walk down the street to another practitioner.
But if all, or nearly all, doctors make the same demand, there’s nowhere else to go; a fundamental right is eradicated. Conduct that is merely inconvenient if pursued by a few people can become intolerable when widely adopted.
Your gynecologist might reasonably insist that patients try mediation as a first step. But she may not, even inadvertently, be part of a group action to bully patients into surrendering access to our legal system.
There are some rights we can be pressed into waiving. Confidentiality agreements limit our ability to express ourselves; noncompete agreements limit our employment choices. Other rights are sacrosanct. We may not sell a kidney or work for less than the minimum wage or hire a guy to shoot us in the kidney for $2 an hour.
The right to our day in court should be among the inviolable."