THE GOODS : A Quicker Resolution Or Settling for Less? : Health: As more doctors require arbitration hearings rather than jury trials, some observers wonder if patients’ best interests are being served.

Fran and Keith Gochmanosky wanted justice.

Their 9-year-old son had undergone surgery to have 70% of his tongue removed because his pediatrician had overlooked a tumor in the boy’s mouth. Distraught over the realization that their son would be haunted throughout his life--every time he speaks, interviews for a job or kisses a girl--the Gochmanoskys decided to take the doctor to court.

Only then did they learn that when they signed up with their HMO several years earlier, they had unknowingly given up their right to a trial by jury as part of their contract. Instead, they had to settle their differences through private arbitration.

“I had no idea we had to use arbitration,” says Fran Gochmanosky, who lives in San Diego with her husband and son, now 12. “I had no idea what arbitration was.”

A panel of arbitrators eventually sided with the Gochmanoskys, who would not reveal the exact settlement amount. And while they are pleased with the outcome, they say a jury might have awarded their son a lot more money--perhaps the full $3 million they asked for. “And he deserves every penny,” says Fran Gochmanosky, whose son sees a speech therapist. “We went through living hell, and my son is going to suffer for the rest of his life.”

Increasingly, patients--knowingly and unknowingly--are signing away their rights to take a doctor to court for malpractice. Today, most California health maintenance organizations--as well as many private doctors--require patients to sign binding arbitration agreements.

While all sides agree that the process reduces legal fees and speeds resolution of a case, opinion is divided as to whether arbitration serves the patient’s best interests.

“From the perspective of the insurance company or the large health plan, arbitration is a great idea,” says Will Clark, a Torrance attorney who represents plaintiffs and defendants in malpractice cases.

“But from the patient’s standpoint, I have strong reservations. A jury trial has been recognized since our nation’s founding as a very important right. We all ought to be very suspicious when someone trades us anything for it,” says Clark, who has also served as an arbitrator.

“Look at what juries have awarded on some lifetime disability or birth injury cases. It can come into the tens of millions of dollars. It is unlikely that arbitration would get to those levels,” he says.

But such massive judgments are part of the problem--and one of the reasons arbitration exists, according to Dr. Mitchell Karlan, a Beverly Hills cancer surgeon and board member of the Southern California Physicians Insurance Exchange. “So many physicians get hit with lawsuits that don’t deal with merit, facts or hard evidence, and lawyers, who have their fingers in the honey pot, have a field day. They play the jury like a violin string. So many frivolous claims raise the cost of medical care.”

Still, Karlan says he no longer advocates arbitration in malpractice cases. After about 15 years of requiring arbitration agreements in his office, Karlan abandoned the contracts several years ago when he realized his patients’ “distaste” for the forms.

“Even before my patients saw me, they were hit with a legal commitment. I didn’t like the feeling it gave them. They have enough to worry about, with a lump in their breast, a hernia or a thyroid problem,” he says. “Those papers tainted our relationship.”

But Dr. Daryl Alexander, a Tarzana obstetrician-gynecologist, believes arbitration benefits all parties.

“I wish I didn’t have to introduce legal topics into my relationships with patients,” she says. “I would like to confine my discussion to medicine, which is my expertise and interest. I wish we did not live in a litigious society. But since we do, I feel more comfortable knowing that we are not going to spend a whole lot of dollars on lawsuits. Arbitration is a way to simplify the medical-legal process and keep costs down.”

According to Alexander, the vast majority of her patients sign the arbitration form without a murmur of complaint. “Interestingly,” she says, “it is never my patients who are lawyers or judges who resist. It is usually people who don’t understand what arbitration is.”

The problem is that most patients don’t know what they are signing away, says Virginia Nelson, a San Diego attorney who represented the Gochmanoskys. “Before people make a decision, they should be informed--but they are not. They get handed this form as they walk in.”

However, Nelson added that she signs arbitration forms herself. “I have no fear of the process,” she says. “The jury trial is not necessarily the only just way to resolve a case. Courts are crowded; cases take a long time to get to trial; they are very expensive. Arbitration is an alternative method of disposing of disputes. If a patient wants treatment by this doctor, I say, ‘Sign it.’ ”

Once signed, the contracts cover all care a patient receives by that provider--forever. The form also states that if a pregnant woman signs the contract, her unborn child is bound by it. If a patient signs the agreement and subsequently dies as a result of negligence or malpractice, the surviving family members are also bound to the terms of the contract.

A person who signs an arbitration agreement, then has a change of heart, may cancel the contract by notifying the provider in writing within 30 days--something many doctors say virtually no patients do. After 30 days have elapsed, getting out of the contract is virtually impossible, unless the other party decides not to enforce it.

“The binding nature of these agreements have been upheld in all court decisions in the last decade,” says Elizabeth Rolph, a senior political scientist at RAND, a Santa Monica think tank.

In a typical medical malpractice arbitration, both the patient and physician are represented by an attorney of their choice. Each side picks an arbitrator--called a “party arbitrator”--and the two party arbitrators together select a third, neutral arbitrator.

Since party arbitrators are likely to favor their respective sides, the neutral arbitrator often casts the tie-breaking vote that decides the outcome of the case. Once a decision is made in arbitration, it may not be appealed.

The arbitration process is generally less formal than a courtroom trial.

“Arbitrators are not as concerned with procedures as they are with getting to the meat of the issue,” says William Goldsmith, a Tarzana malpractice attorney.

“Arbitrators may take over questioning of witnesses, and a jury can’t do that. A witness, for example, may be talking about how wonderful this doctor is, and all the arbitrators are interested in knowing is what angle a ligament was sliced,” he says.

Most legal experts agree that arbitrators, who are usually attorneys or retired judges, are less likely to be swayed by emotion--which is why some people believe a patient, especially one who was catastrophically injured, has a better chance of winning big in a jury trial.

“Juries tend to be more sympathetic than arbitrators, and I think that is good,” says Woodland Hills attorney John O’Meara. “Who is to say that people who base cases on sympathy are not correct? There are juries that occasionally run amok, but it is amazing how often they are right. From what I have seen, plaintiffs do a lot better in jury trials.”

Nelson, the attorney who represented the Gochmanosky family, isn’t so sure.

“By and large my clients walk away (from arbitrations) thinking it was a fair process,” she says. “But it’s a crap shoot with a jury: You have no way of knowing who these 12 people are. Some have a very strong bias in favor of the medical profession. And if you do get a verdict, you may not collect it because of the appellate process.”

So what’s better for the patient: Arbitration or a jury trial?

There is really no good way to compare a person’s chances of winning one way or the other, according to Rolph. For one thing, most cases destined for court settle before ever reaching trial, as the defense does not want to risk getting hit with huge damages. A much greater proportion of cases go to arbitration, where runaway awards are rare.

And because arbitration proceedings are private, getting information on them is difficult.

“There are no public records of arbitration proceedings,” Rolph says, “so you have big problems in terms of getting data and drawing conclusions.”