Said No To The Doctor's Arbitration Agreement

Today I successfully objected to an arbitration clause and was still able to get the service. It was for acupuncture. I was filling out all the blah blah forms and then I came across the arbitration agreement. I wasn’t even planning on this, I just saw it and got really uncomfortable.

My eyes skimmed over the words… forgo constitutional rights… American Arbitration Association… binding… I thought about all the other arbitration agreements I had signed: cellphones, rental cars, and credit cards—why was it a problem now? I also thought about how I had written post after post about how arbitration strips consumers of their rights… how arbitrators that rule in favor of corporations get most of the work… how I had urged people to support the Arbitration Fairness Act. I signed everything except the arbitration form and slipped it between the papers and handed it back…

I hoped that maybe it would go unnoticed, but the receptionist looked through all the papers and said, “Oh, we need you to sign this one.” The acupuncturist arrived and got in the conversation, which went something like this:

ME: I’m sorry, it’s nothing against you guys, I have no plans to sue you, I just don’t feel comfortable giving up my constitutional rights.
THEM: Well, it’s just something we have to have you sign for our malpractice insurance.
ME: Are you going to deny me treatment if I don’t sign it?
THEM: We have attorneys come in here all the time and they even say that it wouldn’t hold up in a court of law…
ME: Oh, it’ll hold up, believe me. Are you going to deny me treatment if I don’t sign?

Then they gave in and let me get stabbed with needles without signing an arbitration agreement. I wasn’t trying to be a hardass, I just genuinely felt physically distressed when I saw that word staring back at me. ARBITRATION. Consumer Rosa Parks I’m not, but being able to negotiate the contract process, object to what I felt objectionable, and still get the services rendered, felt good.

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  1. PølάrβǽЯ says:

    GO BEN! WOOHOO! And honestly, if it were me and they DID deny me service for not signing it, I would have simply stated that I would be taking my business elsewhere.

    Since I have started frequenting the Consumerist, anything I sign I quickly scan for an arbitration clause. I don’t much care what the rest of the agreement states, so long as I can sue them for fucking me sans Vaseline.

    Way to go, Ben. You didn’t exactly save the world, but it’s a damn good start!

  2. speedwell (propagandist and secular snarkist) says:

    People, it’s so important to at least object. You have to let them know you don’t like being treated like that. There may not be much you can do, but you don’t have to lick their hand and pretend to like it. Say ouch when it hurts, dammit.

    Thanks, Ben.

  3. MercuryPDX says:

    You are a brave soul to “harass” a person who is about to jab 50 needles into you like a human pin cushion. ;)

  4. MercuryPDX says:

    And “harass” is meant in the lightest, least objectionable way.

  5. Sherryness says:

    You’re very brave for standing up against the binding arbitration agreement for the first time to someone who was about to stab you.

  6. MercuryPDX says:

    @Sherryness: GMTA

  7. shadow735 says:

    All I can see is this. They go to stick you, there the nurse comes in and startles the sticker and he pokes you in a no no spot so you become paralized.
    Them: dont worry its ok
    You: the hell it is I can move my arms
    Them: we meant its ok for us
    You: Why is it ok for you
    Them: its not like you can sue us, besides its not my fault the nurse scared me.
    You: What do you mean I cant sue you?
    Them: well you signed the arbitration agreement.
    You: So?
    Them: That form you signed means you release your right to file a law suit against us.
    You: Oh God I am so screwed

  8. IrisMR says:

    Great job Ben!

    Too bad acupuncture’s a bullshit placebo though.

    [skepdic.com]

  9. mgyqmb says:

    Although you scored big on the whole arbitration thing…you still paid for some bullshit psuedo-treatment. Might as well have purchased kinoki footpads.

  10. LilKoko says:

    You’re my HERO!

  11. mgyqmb says:

    @IrisMR: I typed up exactly what you just said, then refreshed the page, and there you are.

    But he’s right. Acupuncture is one of those bullshit psuedotreatments that doesn’t even make sense in theory. Might has well have purchased kinoki footpads.

  12. mgyqmb says:

    @mgyqmb: It looks like it went through. Looks like I have a bullshit psuedo-refresh feature on my web browser, too.

  13. IrisMR says:

    @mgyqmb: Lol! Looks like you do have a refresh problem. :)

    Well, it’s more like there is very often a couple minutes delay before comments appear here.

  14. elisa says:

    My mom was in a car accident recently and has been getting some acupuncture for it. It DOES HELP her pain management. YMMV, but just because you don’t think it works for you doesn’t mean it doesn’t work for everyone. The jury’s still out on the scientific studies.

    Arbitration: Actually, I cross that stuff out all the time at the dentist, doctor, etc. I also refuse to fill in some of the too-personal/irrelevant items. No one’s called me on the arbitration thing yet. And if they ask about the info, I ask why they need it, and usually they drop it. I’ve never been denied service because of this yet (crosses fingers).

    • Valhawk says:

      @elisa: The jury is not out on scientific studies. Every legitimate study has shown acupuncture by a trained acupuncturist is no more effective then a placebo treatment where the needles don’t even break the skin(the studee doesn’t know that of course).

      The only studies that show benefits greater than placebo from acupuncture are put out by the Chinese government as propaganda.

  15. LatherRinseRepeat says:

    Just sign, “Decline” on the signature line. The person processing your paperwork will completely miss it, or they’ll think your name is Decline. :-)

  16. Honus says:

    I think the real trick here was in using the phrase “Are you going to deny me treatment if I don’t sign.”

    There are virtually zero reasons why someone medically affiliated (an acupuncturist is still somewhat medical) can deny treatment. It’s a difficult process. Even if you say “I can’t pay for this,” it doesn’t matter. When even not being able to pay cannot be used as an excuse to deny treatment, you get the picture.

    My guess is, you said “Are you going to deny me treatment…” and he started to get a little nervous, sparking the thought of a future court proceeding.

    • tdatl says:

      @Honus: I don’t know about that. Most places will not even make an appointment if you don’t have insurance, and they suffer no consequences for that. Few doctor visits are emergencies. I think those who really believed in the Hippocratic Oath are about all retired and it seems there are few left who will help those who can’t pay or can pay very little. It’s why they all go to emergency rooms.

      What I’m curious about is how many physicians would deny you treatment and then try to bill you for refusing to agree to something they sprung on you at the last minute? I suspect that even in those circumstances most would try to bill you and turn you over to a collection agency if you didn’t pay.

  17. Landru says:

    Good for you, Ben, but just wait until there’s an audit by their insurance company. I’ll bet your file gets red-flagged and indeed, service will be denied.

    Be sure to keep us posted.

  18. humphrmi says:

    Great job, Ben… way to put your money where your … uh… blog is. :)

  19. ironicsans says:

    I just came in to say the thing about bullshit placebos. Apparently, there are proper studies that show acupuncture may have a better-than-placebo affect for pain management, but only for pain management.

    So… unless that’s what you were going in for, how about doing a Consumerist follow-up article explaining to people that they shouldn’t throw their money away on acupuncture, cold laser therapy, homeopathy, etc?

    I guess there’s an acupuncture patient born every minute.

  20. IrisMR says:

    @elisa: Placebo helps pain management a lot. ESPECIALLY on pain management, in fact. As far as scientific studies goes, they are all negative.

  21. MercuryPDX says:

    o/` Tried to make me go to arbitration but I said Noooooo Noooooo NO! o/`

  22. LAGirl says:

    good for you!

    i’ve also gotten in the habit of not signing arbitration agreements at doctors offices.

    however, last time i went to the doctor, they wanted me to update my paperwork. of course an arbitration agreement was in there. i refused to sign it. they said if i didn’t, the doctor wouldn’t see me. period. it was a simple office visit, so i thought well, i’ll just see him for office visits and that’s it. no surgery or any other treatment.

  23. psm321 says:

    Where’s the royal we go? *looks around*

  24. Trai_Dep says:

    …And even “better than placebo” ain’t shabby, considering that the placebo effect has beneficial impact more than 50% of the time.

    My placebo effect is scratching the throat of my kitten when it’s sitting on my lap, and murmering to it until it inches forward a bit. Repeat. Repeat… Until it’s cradled under my neck as I read a book, it purring softly.

    Well, it cures me of all MY ills, anyway. :)

    I REALLY like the “sign ‘Decline'” strategy, btw. And also think that the magic phrase “Are you denying me treatment?” helps as well.

    Good job, Ben!

  25. MickeyMoo says:

    My friend is a real estate agent and has been sniffing around for business, we had an unrelated conversation about the evils of arbitration and he mentioned that his office has arbitration clauses in all their contracts, and I sadly informed him that I won’t be able to avail myself of his services because of that. The reply “but you signed one for your cellphone” (which I’ve had for 5 years never going over 55.00 a month inc taxes) but there’s no way in hell i’d sign one on a real estate transaction, with all the things that could possibly go wrong. I might have lost a friend, but I’m sure I’m better off in the big picture. Good for you Ben!

  26. MercuryPDX says:

    @psm321: That’s Meg

    (Still love you Meg… mean it! :) )

  27. socalrob of the 24 and a half century says:

    I dont know if its because people tend to sue for any little thing, or if the doctors just dont care what they do now and just want to be covered…

    my mom had to sure her dentist for malpractice. This was his second large suit. He charged for work not done, did work that shouldn’t have been done then ended up ruining her teeth and wanting to charge upwards of 100k to fix all the damage he did.

    She won, and is getting everything repaired that he screwed up. she hated having to do this but luckily no arbitration clause was signed.

  28. Jean-Baptiste Emanuel Zorg says:

    We have attorneys come in here all the time and they even say that it wouldn’t hold up in a court of law

    This is where things like this really start to chap my ass.

    When I moved into my current apartment, there was a clause in the lease that stated outright that the tenant (me) would be responsible for the maintenance of the sump pump in the basement. When I balked at this, the girl said “Oh, don;t worry – that doesn’t apply to you.”

    I asked if the building had a basement.

    “Yes”

    I asked if the basement had a sump pump.

    “Yes”

    I then pointed out to her that if the sump pump failed and the building was damaged, I would be legally responsible for all the damages.

    “Oh no – that doesn’t apply to you.”

    I told her that if it didn’t apply to me, then we should cross it out in the lease

    “I can’t do that. Besides, what are you worried about? I told you it doesn’t apply to you.”

    Sigh.

    to stay on topic, though – Good jorb Ben! Frankly, I think MBA should be illegal in ALL cases.

  29. Skeptic says:

    BY TRAI_DEP AT 08:18 PM
    …And even “better than placebo” ain’t shabby, considering that the placebo effect has beneficial impact more than 50% of the time.

    While I’m all for your “kitten therapy,” placebo effect does not work more than 50% of the time.

    A lot of people misunderstand “placebo effect.”

    From the Science-Based Medicine blog:

    The operational definition of a placebo effect is any health effect measured after an intervention that is something other than a physiological response to a biologically active treatment.

    [www.sciencebasedmedicine.org]

    Placebo effect doesn’t change the objective measures of physiological outcome, it changes your attitude and belief. For instance, some men given a placebo for enlarged prostate said they “felt” better but objective measures of their prostate size showed no change in the actual disease. Thus, non-efficacious treatments like placebo effect and acupuncture can provide relief from mild pain for some people, but only to the extent that the pain is a perceptual issue.

  30. backbroken says:

    Thank God there’s a skeptic in the room!

    Get it? See what I did there?

    Really, I’m right with you Skeptic.

  31. Shred says:

    I regularly cross out an arbitration agreement when I see one or simply state that I decline to sign it.

  32. IrisMR says:

    @Skeptic: What the man said! Couldn’t have put it better myself. That’s all there is to acupuncture, folks! Quite frankly, even if it was working (which we showed is NOT), the idea of relieving pain with being stabbed by needles sounds like a bad idea to me… I’d most likely end up stabbing the poker myself.

    …Oh yea, arbitration is bad! I don’t think I ever had to sign one myself. Usually dentists make you sign one before removing your wisdom teeth, and I didn’t even have to do that!

  33. BeFrugalNotCheap says:

    Wow, imagine trying to debate Ben Popken of all people when attempting to get someone to agree to anything by signing a legal document. Makes my brain hurt just thinking about it. I mean, the main man of the consumerist is going to win any argument you try to engage him in and catch any legal bullshit you attempt to sneak by. Glad to see he got what he went there for. Hope you’re feeling better Ben.

  34. shelleyp says:

    It doesn’t matter if you sign it or not. If there is an established policy of using arbitration clauses within the environment, and you are aware of this and continue treatment, if you were to sue and they demanded arbitration, they can show that you agreed to the arbitration clause by continuing with the treatment.

    People, it doesn’t matter if you cross these arbitration phrases or write ‘decline’ or not — the arbitration can be established as part of the policy of the business (or employer), in which can you’re explicit concurrence is not necessary. The courts would say that you had a choice not to be treated.

    Example.

    The only defense against binding Mandatory Arbitration agreements is the Fair Arbitration Agreement act of 2007. Have you contacted your congressional representatives on this? It’s a better use of your time then fruitlessly arguing with your doctors.

  35. Trai_Dep says:

    @Skeptic: Really? Nice distinction there – very educational. Thanks!

    (still recommend purring kittens as therapy, though :D)

  36. Trai_Dep says:

    @shelleyp: Whoa. This doesn’t sound kosher.

    I waive my rights to a trial by jury (a tradition harking back to the Middle Ages) because of a wink and a nod by a sales rep or receptionist?

    I call bull: they don’t have your signature waiving a right, you retain that right.

    They’d try to con you that you should nod, whimper and obey, of course.

  37. PatrickIs2Smart says:

    Accupuncture? Calling Apple Support? Going to the movies? Being on TV? …WHO THE HELL IS THIS BEN POPKEN?!?

  38. XTC46 says:

    @LAGirl: so you said no, they said yes, then you said “ok”. what is the point of arguing if you are just going to fold?

  39. speedwell (propagandist and secular snarkist) says:

    @xtc46: It’s better than not objecting at all.

  40. taka2k7 says:

    bravo Ben!

    What’s up with all the “BS psuedotreatment” comments? Its not like the drugs we all take don’t have side effects. When we have drugs that specifically target an illness without side affects, then we can talk about pseudo-treatments.

  41. burgundyyears says:

    Congrats on beating the arbitration bug. But all said and done, you still ended up paying for acupuncture, so, yeah, I think the joke is actually still on you.

  42. Szin says:

    Did the guy have the box of regular needles and poison tipped needles right next to each other?

  43. dinoman1989 says:

    Hai gaiz,
    I’m new to this whole “consumerist” dealie, but I never quite understood the precedent on this issue. You guys all treat MBA clauses as enforceable, but case law as I understand it says that such contracts and unconscionable and thus unenforceable. Burch v. Dist. Ct. (2002) seems to be the latest word, coming from the Nevada Supreme Court, and it states (HBW is the contract in question, a Home Buyers Warranty):
    —–
    Because an order compelling arbitration is not directly appealable, the Burches appropriately seek writ relief from this court. When there is no plain, speedy, and adequate remedy at law, a writ of mandamus is available to compel the district court to perform a required act, or to control an arbitrary or capricious abuse of discretion. Under the circumstances of this case, the HBW is an unconscionable adhesion contract and, therefore, unenforceable. The district court should not have compelled arbitration under the unenforceable clause. Accordingly, we grant the petition for a writ of mandamus.

    —–

    Seems like an MBA isn’t that binding at all. What’s the dealio?

  44. Skeptic says:

    BY TAKA2K7 AT 01:23 AM
    bravo Ben!
    What’s up with all the “BS psuedotreatment” comments? Its not like the drugs we all take don’t have side effects. When we have drugs that specifically target an illness without side affects, then we can talk about pseudo-treatments.

    Sorry, TAKA2K7, but all treatments powerful enough to have a physiological effect are powerful enough to have side effects. If there are no possible side effects then you know the treatment isn’t real. Claims of “No Side Effects!” are one of the sure signs of quack medicine. Low side effects? Sure. No possible side effects? Nope. Even water can have side effects and can kill you under the “right” circumstances.

    The idea of side-effect free treatments is a nice fantasy, though.

    To confuse matters more, accupunture may have a an effect on pain, however this effect is not related to the ancient chi “meridians.” In a recent study, needles were put in “real” chi points and in random points. The results were about the same, with the slight nod going to the “real” chi points. Accupunture fans will want to say, “No, that’s proof the Chi points work!” But in reality, not so much. The testers put the Chi point needles in deeper, so it is more likely that the effects, if any, are related to how far the needles are inserted rather than where. And this could still be placebo effect, too, because the testers knew whether they were inserting the pins on the “Chi” points or not, so the test was only single blind at best.

    In any case, accupunture has never been shown in a double blind study to do anything but mild pain management, and even then always at about the same rate as placebo. There is no evidence that accupunture helps smoking cessation or any of the other numerous diseases it is used to treat.

  45. Skeptic says:

    I’m new to this whole “consumerist” dealie, but I never quite understood the precedent on this issue. You guys all treat MBA clauses as enforceable, but case law as I understand it says that such contracts and unconscionable and thus unenforceable. Burch v. Dist. Ct. (2002) seems to be the latest word, coming from the Nevada Supreme Court, and it states (HBW is the contract in question, a Home Buyers Warranty):

    No, Mandatory Binding Arbitration is generally still fully enforceable. Those decisions on the unconscionably of the MBA has generally hinged on a confluence of state specific law and clauses in the MBA agreements prohibiting class actions. Any MBA without such a prohibition and/or not in a state with case law finding such clauses to be unconscionable will still likely stand.

    Even without class action prohibitions, non-negotiated MBA’s are still morally unconscionable–especially since “impartial” arbitrators are under financial pressure to please their repeat customers and because arbitrators do not have to base their unappeasable, binding decisions on law. Unfortunately, Federal law gives states very little leeway to find them to be such.

  46. Trojan69 says:

    In most states, if a representative of the entity you are dealing with initials the rider (crossing out a given clause), then that clause is removed from the contract. Better to write in plain english at the end of the agreement/contract that clause “x” is null and void and have it initialed by yourself and the company rep.

    I am not a lawyer. YMMV.

  47. Ben Popken says:

    @shelleyp: Citation?

  48. Ben Popken says:

    I didn’t bring it up in the post because it’s not the point of the article but I would like to say that I did the acupuncture because my girlfriend swears by it and we thought it would be fun to go in together and I figure hey, I’ll try anything once, maybe it will help with stress and energy levels. It might have just been placebo effect but I did feel better afterwards. Will I return? We’ll see.

  49. IrisMR says:

    @Ben Popken: Of course you felt better afterwards, you’re under a placebo effect. It doesn’t mean that you didn’t pay for a woo-woo scam of new age that has been constantly proven useless to the real problem. It’s all psychological.

    I suggest you go to a doctor and that said doctor slips you sugar pills without you noticing. You should get the same effect, but with SUGAR instead! Sugar’s better than being stung like a porcupine.

  50. Ben Popken says:

    @IrisMR: LOL, all my problems are psychological. Anyway, I could be wrong but I’m pretty sure placebos effect doesn’t take effect if you know you’re getting sugar pills.

  51. snoop-blog says:

    ben, you are da shiz-nit!

  52. Hambriq says:

    Well played, sir.

    P.S. Regarding the whole placebo effect, my whole thought regarding this is “If it works, it works.”

    On one hand, they have been shown to have little to no effect over a large sample of the population. So, I rarely, if ever, recommend placebo-type treatments to people who come in asking about a specific problem because the odds are that it will do nothing and they will waste their money.

    But it has been shown time and time again that on a case-by-case basis, there is a lot of potential for beneficial effects. That is to say, if you pick one person out of 100, you may see a noticeable effect, as opposed to averaging the result of all 100 of those people.

    So, if someone comes in and tells me how a placebo-type treatment is working, then by all means, I encourage them to continue it. Ultimately, the end goal is treating the problem by whatever means possible, even if it may not be the most “scientific” means out there.

  53. Curiosity says:

    @shelleyp:

    That is misleading as well as broad – You are arguing that an contract was formed by actions rather than words AND that the businesses interpretation of that contract is the valid one.

    You miss a few things, first, the actions may be equally interpreted either way, second the lack of signing of a binding agreement for the giving up of rights has force. Moreover, you seem to forget that the terms of the contract are interpreted against the party that makes those terms and in this case, the busienss not the consumer makes those terms.

    Note IL law – Apparently the legislature felt that patients at healthcare facilities need protection if asked to sign agreements to arbitrate any claims. The Health Care Arbitration Act, 710 ILCS 15/1, et seq., requires a healthcare provider wanting an arbitration provision to give the agreement to the patient or a member of the patient’s family and reaffirm it in the discharge planning process. If it is not, it is void. 710 ILCS 15/8(e).

  54. Curiosity says:

    @Skeptic: @Skeptic:

    Actually -

    An arbitration clause is enforceable in both state and federal courts, even though there may be state statutory provisions seeking to inhibit or eliminate the right to arbitration. These state statutes are generally struck down as being violative of the supremacy clause of Article VI of the United States Constitution, which holds that the laws of Congress are superior to the enactments of the individual states. Southland Corp. v. Keating, 465 U.S. 1, 79 L.Ed.2d 1, 104 S.Ct. 852 (1984). Thus, the Federal Arbitration Act (FAA), 9 U.S.C. §1, et seq., provides for the enforcement of arbitration contracts, the stay of litigation to enforce binding arbitration contracts, and other forms of relief. 9 U.S.C. §§3, 4. See Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 134 L.Ed.2d 902, 116 S.Ct. 1652 (1996).

    Most securities brokers, some employers, and a number of consumer product and service companies require disputes to be handled through arbitration, rather than through the courts. These clauses are usually enforced, and the governing agreements or operating rules prohibit the disputes being brought as class action arbitrations. The enforceability of these provisions has been hotly contested. See, e.g., Champ v. Siegel Trading Co., 132 F.R.D. 51 (N.D.Ill. 1990); Keating v. Superior Court of Alameda County, 31 Cal.3d 584, 645 P.2d 1192, 1214 – 1218, 183 Cal.Rptr. 360 (1982), rev’d in part on other grounds sub nom. Southland Corp. v. Keating, 104 S.Ct. 852 (1984); Harris v. Shearson Hayden Stone, Inc., 82 A.D.2d 87, 441 N.Y.S.2d 70 (1981). However, the limitations on their enforcement (Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 131 L.Ed.2d 76, 115 S.Ct. 1212 (1995)) or the unfairness of their terms (cf. Green Tree Financial Corp. – Alabama v. Randolph, 531 U.S. 79, 148 L.Ed.2d 373, 121 S.Ct. 513 (2000)) may provide bases for class claims.

    When addressed under Illinois state law, in the Illinois courts, a mandatory arbitration provision is treated as a contract law issue, whose validity is a court determination, and may be voided by a finding that the provision is either procedurally or substantively unconscionable.

    The Seventh Amendment to the Constitution guarantees a right to jury trial for all claims for money damages in excess of $20. Therefore, absent an agreement, no court can order a party to binding arbitration.

    (from various sources)

  55. Curiosity says:

    @shelleyp: Sure you arn’t a publicist of Senator Jeff Jacobs – not sure about the FAIR ARBITRATION ACT OF 2007 [sessions.senate.gov] seems like fluff though I will read more.

    IF ARBITRATION WAS A GOOD DEAL FOR ALL THEN YOU WOULD SEE MORE ARBITRATION AGREEMENTS AFTER A DISPUTE (LEGAL BTW) RATHER THAN IN THE CONTRACT BEFORE A DISPUTE.

  56. shelleyp says:

    Ben, what part of the linked example that I included didn’t you understand?

    Curiousity: do you even know what the Act is? You call it fluff, and then you quote about how if arbitration was a good thing, you’d see more agreements after a dispute than before. Don’t you realize that the whole focus of the Act is to eliminate pre-dispute binding mandatory arbitration agreements? Such as the one discussed in this post?

    As for my statement being broad, no more so than people believing if they decline to sign such an agreement, cross it out, or write ‘decline’ next to it, that they aren’t covered by the arbitration agreement. It may very well not be enough, depending on state law and depending on circumstances. In other words, you can’t depend on this action being enough to protect your rights to a trial rather than arbitration.

  57. Skeptic says:

    BY HAMBRIQ AT 09:52 AM
    Well played, sir.
    P.S. Regarding the whole placebo effect, my whole thought regarding this is “If it works, it works.”

    A couple of problems with that. One is the definition of “works.” Placebo effect makes you think something has worked when, in fact, it has had no physiological effect. So it doesn’t really work.

    Second, how much should a woo-woo quack be able to charge people for fooling them in to thinking they have received efficacious treatment when they have not? I’d say that one should not be able to charge for dispensing ignorant bliss.

  58. Skeptic says:

    Y CURIOSITY AT 11:35 AM
    @Skeptic: @Skeptic:
    Actually -
    An arbitration clause is enforceable in both state and federal courts, even though there may be state statutory provisions seeking to inhibit or eliminate the right to arbitration.

    I think that might be poor phrasing on your part. Nobody is seeking to eliminate the “right” to arbitration. What people are seeking to eliminate is coercive non-negotiated agreements by parties with superior position that force consumers into biased and expensive Mandatory Binding Arbitration, arbitration which does not have to follow the law and is generally unappealable–a private “legal” system bought and paid for by the corporations.

    I think your later post is correct, though, if MBA is so great then more parties would mutually volunteer for it when a dispute arises. As it stands, MBA allows companies to unilaterally exempt themselves from the law–a ridiculous perversion of the intent of the Federal Arbitration Act. The real, but difficult, solution is to change the law at a Federal level.

  59. shelleyp says:

    PS I also wanted to add that it can’t hurt to cross these arbitration agreements out, and may protect your rights. As such, if the organization will still accept the contract with the agreement crossed out or declined, more power to you. Here’s an example where this action worked.

    But I think it’s important that people understand such an act does not guarantee to protect your rights.

    There was one case where a person sued a car dealer, and the company moved to compel arbitration. They did not have evidence of a signed mandatory arbitration agreement, because they said they had lost the contract. Instead, the company brought in a employee as witness who swore that all contracts included a mandatory arbitration agreement. The court then ruled the car buyer was covered by that agreement, whether the customer believed they signed such an agreement or not. No, I don’t have a link on this one. Sorry.

  60. Skeptic says:

    BY TROJAN69 AT 04:51 AM
    In most states, if a representative of the entity you are dealing with initials the rider (crossing out a given clause), then that clause is removed from the contract. Better to write in plain english at the end of the agreement/contract that clause “x” is null and void and have it initialed by yourself and the company rep.

    That really would be best. However, many contracts have a “non-severability” clause that prohibits deletions to the contract. Be sure to cross that one out, too :-)

    In any case, I think you can unilaterally cross out whatever you like and the parts you crossed out can’t be enforced on you. However, if the opposing party doesn’t also agree to the changes in writing on the contract (their initials by the deletions or such) the whole contract may be considered void, which may not be a big issue as long as getting out of the whole contract is an acceptable solution in a dispute.

    –Not legal advice. IANAL. (Couldn’t we get a better acronym for that than “I Anal?”

  61. scblackman says:

    Um …. acupuncturists are NOT doctors.

  62. shelleyp says:

    Skeptic: “Not legal advice. IANAL.”

    You don’t need to say anything if you’re giving an opinion rather that presenting yourself as a lawyer specifically giving advice.

    Assume all parties are not lawyers unless they identify themselves as ones. And even then, take advice with caution because most lawyers are not up on arbitration law. But then, most lawyers won’t give advice out in forums.

  63. Skeptic says:

    @shelleyp:
    Thanks, I usually point out IANAL not so much as a legal disclaimer but as a practical advice disclaimer so that people will know not to assign too much value to my opinion. Even lawyers often can’t agree on what will or won’t work because in many cases it comes down to a decision by a judge or series of judges influenced, in part, by how much justice you can afford (usually in terms of billable lawyer hours.)

  64. @Skeptic: I saw a veterinary study for acupuncture where their results suggested it was the connective tissue that was the crucial thing to target with the needles. But the data was only suggestive and preliminary, not conclusive.

    Apparently animals are fairly good test subjects for acupuncture because they don’t equate “someone coming at me with a needle” with “pain relief” so there’s no placebo effect. :) (The downside being, of course, that with animals you have to judge pain based on visible symptoms, such as favoring a particular limb.)

  65. Skeptic says:

    Apparently animals are fairly good test subjects for acupuncture because they don’t equate “someone coming at me with a needle” with “pain relief” so there’s no placebo effect. :)

    One of the hallmarks of real medicine is that it works on unconscious people, that is, it works whether the patient knows they got treatment or not. Quack medicine does not. Unfortunately general anesthesia is dangerous so we can run tests on accupunture using it. And, as you’ve alluded to, accupunture is especially difficult to double blind test.

    One thing is clear, the theories in Traditional Chinese Medicine about undetectable magical energy flows are all ancient and ignorant attempts to explain how the human body works, created before we had modern science, chemistry, cellular biology, etc. One can be excused for believing back then but there is no excuse for continuing to believe this ancient claptrap.

    If sticking needles in people can help relieve pain then we should study this possible phenomenon with science and discover the underlying mechanism, if any, which might allow us to leverage such a mechanism far more effectively and without sticking people with needles based on the wrong theory and wrong details–if, that is, accupunture actually works in the first place, which it doesn’t for things like nausea relief, smoking cessation or any of the non-pain-related symptoms it is ineffectively used to treat.

  66. Skeptic says:

    Errata:
    “unfortunately general anesthesia is dangerous so we can’t run tests on accupunture using it.”

  67. Ben Popken says:

    @shelleyp: Ah, my eye missed the link. That’s an interesting story, but it’s for employer vs employee and I wonder if the same would apply to a consumer situation. Bears looking into.

  68. Hambriq says:

    @Skeptic:

    A couple of problems with that. One is the definition of “works.” Placebo effect makes you think something has worked when, in fact, it has had no physiological effect. So it doesn’t really work.

    Well… Yes, and no. Again, we’re quibbling about definitions here, but we need to look at your assertion that “it has had no physiological effect“.

    In almost every single published study of a prescription medicine, a placebo will have some noticeable effect. Here’s a random example from the latest copy of U.S. Pharmacist that’s sitting in my bathroom:

    IDNT (The Irbesartan Diabetic Nephropathy Trial): Comparison of Irbesartan 300mg, amlodipine 10mg, and placebo in diabetic kidney disease.
    .
    Reduction of Proteinuria:
    .
    Irbesartan: 33%
    Placebo: 10%
    Amlodipine: 6%

    In this case, a placebo is 4% better than an established medication, and 10% better than doing nothing. And you will see results like this regularly. The placebo almost always has a small increase over baseline. Thus, I would really have to take issue with the notion that “it has had no physiological effect“.

  69. Skeptic says:

    @Hambriq:

    I don’t know if you noticed, but there is something screwy with your conclusions. For one, placebo is a baseline, all treatments get placebo effect. Thus, for one treatment to get less than placebo effect the study would either have to have used a medicine that actually makes worse–thus subtracting from the –or the study would have to be flawed.

    Again, from the article I cited earlier:

    But the more concrete and physiological the outcome, the smaller the placebo effect. Survival from serious forms of cancer, for example, has no demonstrable placebo effect. There is a “clinical trial effect,” as described above – being a subject in a trial tends to improve care and compliance, but no placebo effect beyond that. There is no compelling evidence that mood or thought alone can help fight off cancer or any similar disease…

    Therefore the placebo effect is fairly complex and is largely an artifact of observation and confounding factors. Any real benefits that contribute to the placebo effect can be gained by more straightforward methods – like healthy habits, compliance with treatment, and good health care. The placebo effect is not evidence for any mysterious mind-over-matter effect, but since the mind is matter (the brain) and is connected to the rest of the body, there are some known physiological effects that do play a role (although often greatly exaggerated).

  70. Skeptic says:

    Oops, too much italic, forgot to close my tags (which Blogger won’t even let you do). Hey, if, perhaps consumerist would put up buttons for common formatting such as bold, italic, and

    blockquote

    it would save us all a lot of headache.

    Well, that and a quote in reply button rather than an “@” button.

  71. Hambriq says:

    @Skeptic:

    I think we are in the same boat here. Let me explain.

    The article made a good point that in many cases, a patient will report “feeling better”, despite physiological indicators showing that there have been no beneficial effects. This is the difference that you are focusing in on: that there is a massive disconnect between thinking you feel better, and seeing legitimate results. Believe me, this difference is certainly not lost on me.

    You can’t fake an A1c, or your blood pressure reading, or your LDL count, or anything like that. And yet, in almost every case, you will see some type improvement in these areas due to a placebo. This is what I was trying to show with the random clinical trial that I posted in my second message.

    The article had two responses to this, both of which I agree with. Firstly, that there are many physiological effects that can explain this phenomenon. It went to lengths to show the physiological relationship between a stimulus (such as one’s mood) and a response (such as one’s blood pressure). The point is, as the article stated: “[S]ince the mind is matter (the brain) and is connected to the rest of the body, there are some known physiological effects that do play a role.

    The second point that I also agree with is that the more concrete and physiological the symptoms, the lesser the “placebo effect”. Case in point, when you get cancer, you go see the doctor, not your local herbalist. As the article put, you can’t smile your cancer away.

    However, there are two issues we need to look into. Firstly, a large number (some may even say the vast majority) of health-related problems have very few to no concrete physiological symptoms that can accurately be measured. Generalized pain? Depression? We are still measuring pain on a totally subjective “1 to 10″ scale, and we still for the most part diagnose depression based off of a glorified survey. In cases like these, the line between “feeling better” and “being better” is blurred, and when the issue is idiopathic, that line is almost nonexistent.

    This is where I think the effective management of certain types of therapy can be very beneficial. I won’t speculate as to the physiological benefits of acupuncture, but suffice to say, if at the end of the day, Ben’s average blood pressure is 15mm/hg lower and he reports a prolonged elevated mood, then regardless of the mechanism of action, the treatment has “worked”. As a health care professional, my focus is on results. So naturally, the more concrete and the more physiological the issue, the less likely I am to be accepting of a placebo-type treatment. And likewise, if a particular ailment requires immediate, effective treatment, I will turn to an established cure, no matter how psychosomatic or “all in their head” I think the issue may be.

    Again, what it boils down to is that I am focused on results. If a patient reaches a level of treatment that both he and I find acceptable, then I am happy, regardless of the method of treatment.

    Or, to sum up seven paragraphs in five words: “If it works, it works.”

  72. Skeptic says:

    Or, to sum up seven paragraphs in five words: “If it works, it works.”

    I see where you are going, but I have to ask “at what cost?” Once you start throwing out evidence based standards of treatment anything, efficacious or not, becomes a “legitimate” treatment. I’d like to keep a line between what works and what merely appears to work.

  73. Hambriq says:

    @Skeptic:

    Once you start throwing out evidence based standards of treatment anything, efficacious or not, becomes a “legitimate” treatment.

    But the sole criterion of my standard of judgment for non-evidence based treatments is whether or not it’s efficacious. Because of that, it’s far too large of a leap to go from accepting something on a case-by-case basis to accepting everything.

    I think there are a few important things to consider here:

    1.) I am not extrapolating one individual’s success with a treatment to mean that every instance of that treatment will be effective. That’s what clinical trials are for.

    2.) I make sure to differentiate between what works and what appears to work. That being said, in many cases, the line between “feeling better” and actually getting better is blurry and even nonexistent. These are the cases that I am most comfortable with alternative forms of treatment.

    3.) The more risk involved, the more skeptical I am towards unproven remedies, and the more reluctant I am to accept them as the only course of treatment.

    The key is being balanced, reasonable with your expectations, and thoroughly understand the risks vs. rewards of each type of treatment. I keep a mindful eye on the “slippery slope” potential of alternative treatments, but given the current crisis in the health care industry, I think it’s imprudent to look at the medical world in black-and-white terms.

  74. mzs says:

    First I wish to skip the whole thing about the acupuncture. But if you ever go to a doctor that your HMO sends you to and you need to sign an arbitration clause, just leave. The doctors that want you to sign those are the ones that are being pressured to do that by the insurance companies because they have screwed-up so many times in the past. This is your or your kids’ health you are talking about, just do not deal with a quack at all.

    For me personally I was young and inexperienced and I signed it. The doctor misdiagnosed me and I was leaving in tears believing that my wife had been cheating on me. (The doctor diagnosed me with having herpes.) I saw a dermatologist office in the same complex and paid out of my own pocket only to learn that the previous doctor was a moron and I simply had a yeast infection.

  75. Difdi says:

    Skeptic, ancient beliefs are not automatically invalid…though not always for the reasons the belief claims. For example:

    Ancient beliefs: The soul leaves the body at death. You must bless someone who sneezes or their soul may escape their body, causing them great harm.

    Modern knowledge: you are clinically dead for a moment when you sneeze.

    You can debate the existence of souls all you like. But the belief is eerily accurate, assuming souls exist.

  76. metaslugx says:

    Just make it so you ALWAYS refuse to sign these agreements. That way you can confidently say “it’s nothin’ personal, just business”

  77. debra says:

    Is it legal in California for a Doctor to cancel an upcoming appointment and refuse service to you in the future because you revoked (using Article 6) the Arbitration Agreement that they forced you to sign in their office?