By Kim Dixon

WASHINGTON, May 1 (Reuters) - The government’s Medicare program on Thursday proposed payment cuts to reimburse nursing homes that treat more than 1 million of the nation’s elderly.

The Centers for Medicare and Medicaid Services (CMS) announced a proposed 0.3 percent cut to reimbursements, which if enacted will hurt Kindred Healthcare Inc (KND.N: Quote, Profile, Research), Skilled Healthcare Group Inc (SKH.N: Quote, Profile, Research) and Sun Healthcare Group Inc (SUNH.O: Quote, Profile, Research).

The looming decision has beat down shares of publicly traded nursing homes since February, when a proposal to trim $4.7 billion in payments over five years first surfaced.

Analysts said they were still dissecting the roughly 100- page proposal, but several said it was in-line with market expectations. Some earlier said the initial proposal in the president’s budget could be softened, due to lobbying from industry and lawmakers. That did not appear to happen.

“Clearly CMS is flexing their muscle,” Ipsita Smolinski, a Washington analyst at JP Morgan said.

The rule is still subject to public comment period for further lobbying.

Earlier in the day, a trade group for nursing homes put out an estimate the cuts could have a total economic impact of $4.2 billion in one year, impacting jobs and state tax revenue.

“This is a net negative for the profession as it’s proposed right now,” said Susan Feeney, a spokeswoman for the American Health Care Association (AHCA).

The analysis was conducted by the consultants the Lewin Group.

Nursing home companies rely on government health care funding to pay for most of their services. Between 1 million to 1.5 million Americans live in nursing homes, a number expected to swell as the baby boomer population ages. (Reporting by Kim Dixon; Editing by Andre Grenon)

April 10, 2008

DENVER — One state lawmaker believes more and more nursing homes are taking advantage of elderly patients and their families by including binding arbitration clauses in their contracts, and she is sponsoring legislation to prohibit the clauses.

“Binding arbitration means you don’t get your day in court,” said Rep. Cheri Jahn, D-Wheat Ridge.

The arbitration clauses mean that no matter how egregious the treatment, the patient can’t file suit in public court to settle a dispute, Jahn said. The patient can only negotiate behind private doors with an arbitrator chosen by the nursing home, she said.

“More and more they’re placing them in these contracts, and people literally don’t know what they’re signing. That is wrong,” Jahn said.

Mike Trenkle, of Elizabeth, experienced the issue firsthand after admitting his grandmother into a Colorado nursing home.”You just sign whatever you do because you care for your loved one,” said Trenkle.

He said after a negligent physical therapist caused his grandmother to break her leg, he pulled her out of the home and tried to sue, but he had signed a binding arbitration agreement. The arbitration procedures dragged on for more than two years, until she died in January.”When you’ve got these arbitration agreements there’s nothing to make these people toe the line,” he said.

Jahn said she is drafting a late bill to ban binding arbitration agreements in long-term care contracts. The Colorado Health Care Association, a trade organization representing the state’s nursing homes, is opposed to the bill. In a statement, the groups general counsel, Fred Miles, wrote:

“The process is not mandatory and may not be a condition of admission to any facility; in fact, the agreement may be rescinded by the patient or responsible party within 90 days of signing if they so choose. It is condescending to suggest or imply that these citizens should be denied this right because they don’t know what they are doing — we venture to say that the real motive behind this bill relates to the monetary desire of trial lawyers to further litigation and to ‘control’ their clients. The increased cost associated with litigation will be borne by you and I as citizens (in the form of increasing the cost of long-term care to private payers) and the taxpayers (as such cost increases will be passed on to governmentally funded health care programs such as Medicare and Medicaid).

By ALLISON HOFFMAN

April 8, 2008

Marine captain who is on his third tour in Iraq was awarded $3.5 million in punitive damages Tuesday from a servicemembers’ insurance company for water damage to his house.

Capt. John Colombero already won $50,000 in damages for emotional distress last week after his lawyers argued that he spent time between deployments arguing with his insurance company, USAA. The insurer had denied a 2004 claim for $84,744 in damage to his house in Oceanside, south of the Marine Corps’ Camp Pendleton.

Colombero’s father said financial uncertainty and paperwork associated with the insurance claim and lawsuit took their toll on his son.

“The Marines don’t give you much flexibility, so he had to take care of the documents and then worry about his deployment too,” John Colombero, Sr., said in an interview. “He’d get up at 4:30 in the morning and come home at 10:30 at night and then have to deal with this.”

USAA spokesman Roger Wildermuth defended the company’s work and said the insurer plans to appeal the damages.

Jurors indicated on court forms that the punitive award was intended to punish USAA for malice, oppression and fraudulent conduct, said Ricardo Echeverria, Colombero’s lawyer.

An insurance litigation analyst said the damages would likely be reduced.

“I say ‘wow’ because it’s really an amazing jump to get from the initial award to those punitive damages,” said David Rossmiller, managing editor of the Insurance Coverage Law Blog. “It absolutely plays into people’s minds, that he’s a Marine. Would they have given the same award to somebody else? Maybe not.”

USAA, a private company based in San Antonio, provides insurance and financial services to 5.6 million servicemembers and their families.

Colombero, 34, originally of San Jose, bought his three-bedroom house for $352,000 in 2002 and rented out the spare bedrooms to make his payments. In 2004, after he returned from a tour in Baghdad, Colombero decided to build an addition. A pipe burst during construction, damaging the foundation.

Colombero, who testified before he deployed again March 20, heard about the verdict when he made on a phone call to his fiancee, Kimberly Collins, from Iraq.

“We were in there with the jurors, so I put him on speakerphone and he thanked them for their service,” Collins said. “Then I took him off speakerphone and told him they just gave him $3.5 million, and he just said, ‘Oh my God.’”

Vittorio Hernandez - AHN News Writer

Sacramento, CA (AHN) - A study released Tuesday reported growing profitability of the nursing home industry, but declining health care quality.

Researchers from the University of California San Francisco found out that two years after the state passed legislation increasing reimbursements from Medi-Cal, average nursing home income from the state’s healthcare program went up to $152 from $124 daily.

The same study discovered 16 percent of nursing homes in the state failed to measure up to California’s minimum staffing benchmarks. A minimal rise in average salary for nursing assistants by less than one dollar was not sufficient to cover inflation rate increases. Even higher-paid nurses had a fast turnover rate, with 7 in 10 resigning from their jobs in 2006.

But average spending on direct patient care went down by 3.6 percent, while complaints of patient mistreatment proven went up by 36 percent.

Charlene Harrington, the lead author of the study, wrote as her comment, quoted by the Los Angeles Times, “They got so much money, they should have been able to do something.”

Betsy Hite, spokeswoman for the California Association of Health Facilities, said it was too early to judge the nursing homes. She admitted the legislation turned around the association members’ finances, but would prefer true accounting of funds received from the Medi-Cal to be done closer to 2009.

Meanwhile, United Way, a charitable organization which funds nursing homes, soup kitchens and other social service providers, reported difficulty in raising funds. Carol McCormack, president of United Way Mesa, attributed the decline in donations to the slump in the housing industry since architects, engineers, real estate agents and construction workers form the bulk of the group’s major donors. The shortfall in fund raising this year was $350,000, McCormack told the San Francisco Examiner.

April 2, 2008

WellPoint won’t pay for botched surgeries

By Tom Spalding, Indianapolis Star
WellPoint has come up with a new way to protect patients from having a routine surgery go awry.

It won’t pay for them.

The Indianapolis-based health insurer today said it has informed hospitals that service WellPoint’s 35 million members that it won’t pay the hospitals for medical errors in 11 scenarios, including surgery on the wrong body part or for an object or medical instrument left in the body during surgery.

Other boo-boos that won’t be tolerated: catheter-associated infections and hospital-acquired injuries such as fractures, dislocations, crushing injuries and burns.

WellPoint says its stance should save money, since medical professionals will have to be extra careful. Avoidable errors will now carry a price tag.

“Our primary focus is to help ensure that physicians and hospitals are using appropriate processes, technologies and strategies to address ‘never events’ and ultimately to enhance the quality of care delivered to hospitalized patients,” said Sam Nussbaum, WellPoint executive vice president of clinical health policy and chief medical officer.

In a news release, the president of the National Patient Safety Foundation praised WellPoint’s initiative, which is in its first stage. Diane Pinakiewicz called the move “commendable” and a proactive way of ensuring patient safety.

One client is already praising WellPoint for its stance.

“It is critical that the entire health care system be looking for ways to improve safety and reduce harmful medical mistakes,” said Bruce E. Bradley, a General Motors health care director says. GM thanked WellPoint for “implementing policies to help eliminate these costly adverse events.”

Office surgery incidents: what seven years of Florida data show us.  
 

Coldiron BM, Healy C, Bene NI.Dermatol Surg. 2008 Mar;34(3):285-91; discussion 291-2. Epub 2007 Dec 20.

Patient safety in ambulatory surgery centers (ASCs) has received increasing attention, and the Joint Commission’s National Patient Safety Goals now include specific requirements for ASCs. This study summarizes the types and severity of adverse events occurring in ASCs in Florida, gathered using that state’s mandatory reporting system. The majority of deaths and hospital transfers occurred in patients undergoing cosmetic procedures, incidents that are generally considered never events. A previous AHRQ WebM&M commentary and perspective discuss the issues pertaining to improving safety in outpatient surgery, which remains a largely unregulated area.

BACKGROUND: In the wake of increased media attention focusing on human error in medicine, numerous state medical boards and legislatures have drafted, and are continuing to draft, regulations aimed at protecting patients undergoing procedures in the office setting. These regulations will have a considerable impact on patient access to medically necessary procedures, and any regulations should be based on good data. This report summarizes 7 years of prospective data from the state of Florida, the best data available on office surgery incidents.

OBJECTIVE: The objective was to determine the nature and incidence of hospital transfers and deaths resulting from office procedures.

METHODS: This study is a compilation of mandatory reporting by Florida physicians to a central agency of all in-office adverse incidents resulting in death, serious injury, or hospital transfer in the State of Florida from March 2000 to March 2007. Telephone and internet follow-up was conducted to determine reporting physician board certification, hospital privileges, and office accreditation.

RESULTS: In 7 years there were 31 deaths and 143 procedure-related complications and hospital transfers. Liposuction and liposuction with abdominoplasty or another cosmetic procedure resulted in 24 complications and 8 deaths. Of the offices reporting adverse incidents, 38.5% were accredited by an independent accrediting agency, 92.5% of the physicians were board-certified, and 96.6% had hospital privileges. A total of 58% (18/31) of the deaths and 61% (87/143) of the complications were associated with nonmedically necessary (cosmetic) procedures. A total of 78% (14/18) of these deaths were in ASA Class 1 patients. Plastic surgeons were responsible for 48% of all deaths (83% of cosmetic surgery deaths) and for 52% of all hospital transfers (83% of cosmetic surgery complications and hospital transfers).

CONCLUSION: Plastic surgeons were responsible for an inordinate number of deaths and hospital transfers. Requiring physician board certification and physician hospital privileges would not seem to increase safety, because most physicians already have these credentials, and physicians without these credentials were not responsible for a disproportionate share of incidents. These data do not show an emergent hazard to patients from medically necessary office surgery. Liposuction under general anesthesia deserves continued scrutiny because deaths due to this procedure continue to occur and this procedure can be performed with dilute local anesthesia, with which no deaths were reported. Mandatory reporting of office incidents should be strongly supported, as well as reporting of incidents that occur after surgery in the hospital outpatient department and ambulatory surgery center. These data should be available for analysis after protecting patient confidentiality. A national debate needs to occur to determine how many deaths and injuries are acceptable from cosmetic procedures performed under general and intravenous anesthesia.
 

By Will Dunham

WASHINGTON (Reuters) - A surprising number of people — more than 60 percent — still suffer significant pain a year after a traumatic injury in a car crash or other cause, showing the need for better pain treatment, researchers said.

In a study published on Monday in the journal Archives of Surgery, researchers tracked 3,047 patients ages 18 to 84 from 14 U.S. states who survived an acute traumatic injury.

A year after the injury, 63 percent reported that they still experienced pain related to the injury, with most having pain in more than one region of the body.

On average, the patients assessed their pain at 5.5 on a 10-point scale — a level at which they would be expected to have moderate to severe interference with daily activities.

“I was surprised that the pain was as common and as severe as they reported it to be,” said Dr. Frederick Rivara of the University of Washington in Seattle, who led the study.

“The implications are that we need to do a much better job of identifying pain in these patients, treating it adequately and treating it early,” Rivara added in a telephone interview.

The people in the study sustained head injuries, broken limbs, chest or abdominal trauma and other injuries in motor vehicle crashes, falls and other circumstances.

Pain was most commonly seen in joints and limbs (44 percent of patients), the back (26 percent), the head (12 percent) and neck (7 percent).

Rivara noted that people who experience chronic pain are at higher risk for depression and for being unable to work or function normally.

“The focus up until now in a lot of our care is on whether you live or die, which is obviously important. But we can’t just stop there. And I think we need to look at what are the things we can do to improve people’s lives after serious illness or injury,” Rivara added.

The American Pain Foundation, a Baltimore-based advocacy group, said the financial cost exacted by chronic pain in the United States — including health-care expenses, lost income and lost productivity — is estimated at $100 billion a year.

The group said back pain is the leading cause of disability in Americans under 45 years old.

“There are hundreds of thousands, if not millions, of people who have had traumatic injury when the focus has been the injury and the destruction of tissue and not the pain. Pain has been a secondary consideration (during treatment),” said Will Rowe, American Pain Foundation chief executive officer.

“In many instances, the injury heals and the pain persists. That’s the story that needs to be told,” Rowe said.

By AMANDA SCHAFFER
Published in the New York Times on February 19, 2008

To understand why some doctors and nurses take bedsores so seriously, it helps to call them by their clinical name: pressure ulcers.

An area of skin breakdown that occurs when sustained pressure cuts off blood circulation — usually in patients confined to their beds in hospitals and nursing homes — a bedsore can result in a wound so deep and painful that some patients require narcotics. If a bedsore becomes infected, the complications can be fatal.

“They are not just little sores,” said Susan D. Horn, senior scientist at the Institute for Clinical Outcomes Research in Salt Lake City. “If you’ve ever seen a very bad one, frankly, it would make you sick. You see a very reddened outer area, then you see, depending on how deep it is, just this hole in the skin, and it goes right down to the bone.”

Experts estimate that two million Americans suffer from pressure ulcers each year, usually through some combination of immobility, poor nutrition, dehydration and incontinence. The Centers for Disease Control and Prevention does not keep statistics on fatalities, but one prominent victim was the actor Christopher Reeve, who died of a bedsore infection in 2004 in the middle of a heroic battle against paralysis.

New research is suggesting that the battle against bedsores requires a team approach, enlisting everyone from nurses and nursing assistants to laundry workers, nutritionists, maintenance workers and even in-house beauticians.

In a study of a collaborative program involving 52 nursing homes around the country, The Journal of the American Geriatrics Society reported last August that team efforts had reduced the number of severe pressure ulcers acquired in-house by 69 percent.

“Preventing pressure ulcers is a 24/7/365 kind of job,” said Jeff West, a clinical reviewer at Qualis Health in Seattle, who helped to set up the collaborative in 2003. “It’s not as if one person can get it all done. And if it fails just a little bit, just during the weekends, for instance, you’re not going to get the results. It takes tremendous consistency.”

At the Lutheran Home in Fort Wayne, Ind., for instance, “the laundry workers helped us see that some clothes weren’t fitting the residents properly and were restricting their skin,” said Jeanie Langschied, a registered nurse there.

The kitchen staff began putting protein powders in cookies to boost nutrition. They added buffet dining, so residents would not remain in one position for so long, compressing fragile skin.

Even the beauty shop “realized that wait times needed to decrease,” Ms. Langschied said, and residents should be repositioned while getting their hair done. “It was all departments looking at everything, and it was just amazing the information that flowed through.”

Lutheran Home was one of the 52 facilities that took part in the collaborative, sponsored by the Centers for Medicare and Medicaid Services. Dr. Joanne Lynn, who helped begin the project when she was a senior natural scientist with the RAND Corporation (she has since joined the Medicare centers), said the goal was to educate nursing home workers in bedsore prevention and to encourage them to come up with creative, low-tech solutions of their own. “It was a combination of education, cheerleading and something like systems engineering,” Dr. Lynn recalled.

The number of superficial bedsores did not decrease to a statistically significant degree, for reasons that are unclear.

At David Place, a nursing home in David City, Neb., staff members say they focused on assessing each resident’s risk for bedsores, and noted this risk on the assignment sheets used by nursing assistants.

“The residents at highest risk,” said Dan Smith, director of nursing, “would be the last up for meals and the first down after meals so they would not be in their wheelchairs for long periods of time putting pressure on their bottoms.” Residents at risk from weight loss were given yellow plates, so that staff members would remember to encourage them to eat more.

David Place also bought new mattresses made of high-density foam to reduce pressure in key areas. Staff members say they redoubled efforts to keep feet elevated with pillows so that bedsores would not develop on the heels. And they began to use new moisture barrier creams with residents who were incontinent, since lingering moisture can speed the development of sores.

Staff members at Palatka Health Care Center in Palatka, Fla., initiated a similar blend of measures. They created a “skin-watch action team,” or SWAT, to identify vulnerable residents and to make sure that their heels were floated, that they were given pressure-reducing cushions and that they were repositioned frequently, said Carol Jones, a risk manager at the center.

“We got the grass-roots level, the certified nursing assistants, much more involved, and they were held accountable,” Ms. Jones said. If a bedsore began to develop, she said, “we’d ask them, how did this happen?”

Initially, as the collaborative collected data from participating facilities, the incidence of pressure ulcers did not appear to change, Dr. Lynn said. It was only when researchers focused on data for the most severe bedsores that they saw an improvement.

Clinicians document four stages of pressure ulcers, in which Stages 1 and 2 are superficial sores and Stages 3 and 4 are deep wounds that result from death of the skin and underlying tissues.

“In good care, almost all new stage 3 or 4 pressure ulcers show up fully formed,” Dr. Lynn said, meaning that they do not begin as superficial bruises that then go deeper. The injury, she said, “appears to be in the deep tissues from the start, though it can take a few days for the extent of dead tissue to become apparent.”

The deeper sores may have different underlying causes than the superficial ones, she said. But it is unclear why the less severe ones did not respond as well to the practices instituted by the collaborative.

Dr. Horn, of the Institute for Clinical Outcomes Research, praised the collaborative as “the first major national effort driven by Medicare to reduce pressure ulcers.” But she said that better outcomes could be achieved if more nursing homes improved their documentation, so that all of the information on a given resident, including details on eating, urinary and bowel function, appeared on a single sheet, with key reminders to nursing assistants and other staff members about best practices.

Institutional change and work-flow redesign are critical, she added, given the high rates of turnover in nursing home staff across the country.

The changes need to become hard-wired in an organization, said Mr. West, of Qualis. “A lot of places do well when they have a lot of support,” he said. “But it’s hard to keep that momentum going. That’s the real challenge.”

Statewide efforts to reduce pressure ulcers are also under way in California, New Jersey, New York and elsewhere.

Bedsores are “a major quality-of-life issue, and a self-esteem issue,” said Joanie Jones, a nurse at David Place in Nebraska. “No one wants to have sores on their bottom. I don’t care how old you are. You still want your skin intact.”
 

WASHINGTON (AP) — After initially resisting their disclosure, the Bush administration on Tuesday published the names of 131 nursing homes with poor inspection records and said some were already showing signs of improvement.
The list released by the Centers for Medicare and Medicaid Services represents troubled facilities cited as a “special focus facility,” a designation used to identify those that merit more oversight. For these homes, states conduct inspections at six-month intervals rather than annually.

Last November, the government released a partial list of 54 nursing homes that ranked among the worst in their states, balking at releasing the full list of homes with the “special focus” designation. After a group of Democratic lawmakers began pushing for full disclosure, CMS said Tuesday it was publishing the names after cross-checking information to ensure the release of the most accurate data.

CMS will update its list of troubled nursing homes on a quarterly basis, with its next release scheduled for April.

“This is the latest in a series of steps we will be taking to improve quality and oversight in nursing homes,” said Kerry Weems, CMS acting administrator. “We are issuing more information on special focus facilities to better equip beneficiaries, their families, and caregivers to make informed decisions and stimulate robust improvements in nursing homes having not improved their quality of care.”

“This should just be one of the tools,” Weems added. “There is no substitute for visiting the nursing home in person.”

The list released Tuesday shows 52 nursing homes as not showing improvement after they were cited as a higher-risk nursing home, while another 52 did show some improvement. Twenty-seven nursing homes were added to the list in the last six months.

Out of the 54 nursing homes initially disclosed as poor performers last November, 21 have shown improvement, CMS said, adding that publicity about the problems might have played a factor.

There are about 16,400 nursing homes nationwide, and taxpayers spend about $72.5 billion annually to subsidize nursing home care.

While most nursing homes have some deficiencies, with the average being six to seven deficiencies per survey, the special focus facilities typically have about twice that number, and continue to have problems over a long period of time. However, the states determine which nursing homes should get the designation, and inspection standards vary among the states.

The offenses typically involve unnecessary use of medication for elderly residents, or inadequate safeguards to protect residents such as those with Alzheimer’s from day-to-day hazards in the nursing home.

Sen. Herb Kohl, D-Wis., who chairs the Senate Special Committee on Aging, applauded CMS’ move.

“We believe that Americans should have access to as much information about a nursing home as possible,” he said. “We also agree that giving consumers more information about our nation’s nursing homes is a good idea, but that doing so in a manner that causes a panic is not.”
 

Arbitration a growing trend in health care

By Stacey Burling, Philadelphia Inquirer Staff Writer

Within the space of two weeks late last year, Michael and Hedy Cohen, who happen to be experts on medical errors, each encountered what they saw as a disturbing development in the modern doctor-patient relationship.
They were asked by two groups of suburban doctors to sign away their right to a jury trial in the interest of reducing malpractice costs.

Legal experts say such attempts to channel potentially unhappy patients away from the court system and into arbitration are becoming increasingly common in health care. Agreements to settle future disputes with binding arbitration, in which an appointed individual or small panel decides the case instead of a judge or jury, are now pervasive in contracts involving many other things we buy, including credit cards, cell phones and cars.

Proponents say arbitration is faster, cheaper and fairer than trials, but critics say the secretive system can be weighted against consumers and makes it harder to track complaints or build legal precedents.

Eugene Rosov, who runs two malpractice-insurance companies that advise doctors to use arbitration agreements, said he thought they ultimately would reduce the cost of insurance and defensive medicine - tests ordered primarily to protect against lawsuits. “This agreement is better for doctors and for patients,” said Rosov, whose companies have 35 subscribers in New Jersey and Pennsylvania. “The only person it’s bad for is the plaintiffs attorneys.”

But Temple University law professor Bill Woodward thinks the growth of a private judicial system “is a pretty nasty legal development, I think, and it’s just crying out for correction from Congress.”

A bill introduced last year by Sen. Russ Feingold (D., Wis.) aims to do that. It would prohibit pre-dispute arbitration clauses involving employment, consumer, franchise and civil rights disputes.

Michael Cohen was handed an arbitration agreement when he visited his longtime primary-care doctor in Bucks County. Cohen said he was not the suing kind, but the thought of being asked to give up his right to sue “stopped me in my tracks.”

He said no, and his doctor saw him anyway.

Then Hedy Cohen, who has had a kidney transplant, was mailed a similar form by a group of kidney specialists she planned to see for the first time. The form from Hypertension-Nephrology Associates in Willow Grove insisted on binding arbitration and said she would have to pay the doctors’ legal fees if she filed a complaint and lost.

Hedy Cohen said no and was told to find another nephrologist.

That was fine with Cohen, a nurse with a master’s degree in health-care administration. “I couldn’t have a relationship with this person because they had already set the tone,” she said. “We’re adversaries before we even know each other.”

Jerry Dolchin, the nephrologists’ attorney, said the doctors began using the forms at the height of Pennsylvania’s malpractice crisis in 2003, when doctors, he said, were being “hit pretty hard by overzealous plaintiffs’ lawyers.” Since then, he said, “hundreds and hundreds and hundreds” of patients have signed the form.

Ruth Schulze, a North Jersey gynecologist, started asking patients to sign an arbitration agreement last year after she bought malpractice protection from Obstetricians & Gynecologists Risk Retention Group of America Inc., one of Rosov’s companies. She gave up obstetrics two years ago after she was told she would have to pay more than $120,000 for insurance.

Schulze said she won each of the three times she was sued, but left the trials disenchanted. “It is not really a trial of your peers,” she said. “It’s theater.”

Her patients have largely embraced the new approach, she said. She will not do surgery on anyone who refuses to sign the form, which limits pain and suffering payments.

For her, the arbitration agreement sets the groundwork for a more trusting doctor-patient relationship. Patients need to understand that bad things happen in spite of doctors’ best efforts. “Medicine is not guaranteed perfection,” she said.

Steven Barrer, a Montgomery County neurosurgeon, says he thinks he was the first in his area to start using an arbitration agreement around 2003. Barrer wanted to “somehow create malpractice reform for myself since it wasn’t coming from the courts and it wasn’t coming from the legislature.”

He got the idea for an arbitration agreement from his cell phone contract. “I figured if they can do it, why can’t I?” he said.

Out of thousands of new patients, only about 10 have refused to sign the form. He does not ask patients with emergencies.

No one knows how many doctors here use such agreements, but the practice does not appear widespread. It is common on the West Coast, and legal experts say it is spreading nationally. Many nursing homes ask residents to sign arbitration agreements, experts said. Golden Living, a national chain that operates 40 nursing homes in Pennsylvania, says about half of its residents agree to arbitration.

Doctors who join Medical Justice, another group trying to reduce malpractice expenses, do not require patients to agree to arbitration, but do ask them to sign contracts saying they will not file “frivolous” lawsuits and will use only board-certified specialists as medical experts in court.

In a project set to start next month in Montgomery County, the local medical society, bar association, and Abington Memorial are working together to solve medical disputes with mediation. While an arbitrator decides a case, a mediator shuttles between the two sides to help them reach an agreement. If they fail, the patient can still file a lawsuit.

The Rothman Institute, one of the largest and best-known surgical practices in the region, is currently mulling whether to ask patients to sign statements saying they will try arbitration or mediation.

Trial lawyers say mediation raises far fewer ethical concerns than binding arbitration, but critics of mediation say it often fails, becoming just another step to a lawsuit.

Legal experts say courts have been mixed on upholding the agreements. Barrer said two patients had tested his contract. It was upheld in one case and shot down in the other. Lawyers said requirements hidden in fine print, particularly arbitration systems that require consumers to travel long distances, are legally shaky.

John O’Donnell, senior counsel for Temple Health System, said Temple considered asking patients to sign agreements but feared most would not read them and worried that those who did would be upset. They also thought the agreements were likely to be unenforceable. The system decided instead to work harder to avoid mistakes and do a better job of dealing with mistakes that still occurred.

John O’Brien, a health-care defense lawyer, said he thought the agreements should give patients time to think and should clearly say that patients were giving up their constitutional right to a jury trial.

Critics of arbitration say it tends to benefit companies that frequently need arbitrators. It makes sense, they argue, that arbitrators would be more interested in pleasing “repeat users” than a consumer involved in one dispute.

“There are certainly companies that have their favorite arbitrators . . . and they use them and use them and use them,” said William Callaham, a Sacramento lawyer who is president of the American Board of Trial Advocates, a group seeking to protect jury trials. “Let’s face it. They use them because they get the results they want.”

Doctors have far fewer disputes than cell phone companies, but Alan Schwartz, a plaintiffs’ lawyer, still thinks malpractice victims do better in court. The arbitration system rules, he said, work against him.

“I have to play my game in their stadium with their refs.”