This post was written by Keith A. Hebeisen & Shannon M. McNulty, Partners at Clifford Law Offices.
Northwestern Medicine, one of the largest hospital networks in the Chicago area, announced that patients who wish to communicate with their doctors online or utilize its digital services for appointments, test results, medication refills, and other health-care related activities will be limited to arbitration as a remedy.
That means that by agreeing to be a patient of a doctor affiliated with this practice group, and consenting to use of the Northwestern patient portal, the patient would not be allowed to pursue individual litigation or a class action in a court with a judge and jury, if harmed by invasion of privacy or other related issues even if negligence were to have occurred.
This unilateral decision came as quite a surprise to patients who had no input. Patients reportedly learned of the issue via a pop-up in December, 2018, that appeared when opening MyChart, the network’s online program.
Northwestern did not reveal how many patients utilize the online MyChart program.
“This is not fair to patients,” said Keith A. Hebeisen, partner and head of medical malpractice at Clifford Law Offices. “Patients and their families do not even know if a dispute exists or the extent of any damages until something devastating or permanent has occurred. If Northwestern or its representatives or agents give negligent advice to patients via the website, it should be treated just like any other communication to the patient. Negligence should be determined by a jury along with any damages that occurred.”
If patients have a dispute resolved by a private arbitrator, the outcome is final and is confidential. Northwestern announced that patients also could pursue a claim in small claims court where a judge, not a jury, would decide the matter.
“This action by Northwestern Medicine is quite unusual,” said Shannon M. McNulty, head of the class action practice at Clifford Law Offices, a personal injury and wrongful death firm based in Chicago. “Generally, it is left to the courts to decide what courses of action a patient or anyone has if their legal rights are violated. For a healthcare provider to make such a sweeping determination will likely be tested in the courts if this policy is pursued and becomes a rule that patients must follow if they want care by that hospital network. Not only does this policy raise serious issues about accountability, but it may also be in conflict with the Patient Protection and Affordable Care Act.”
Judges in Illinois are elected, whereas arbitrators are hired by companies and have to be paid by one or both parties. Arbitrations can cost an average of $2,500 per day.
Northwestern Network, which reportedly took in more than $5 billion in revenue in 2018 according to WBEZ, stretches from Chicago for about a 70-mile radius. “Northwestern Medicine MyChart Users: Your Legal Options Just Shrank,” Kristen Schorsch, WBEZ reporter, Jan. 9, 2019.
Advocate Aurora Health, Rush, UChicago Medicine, AMITA Health, NorthShore University HealthSystem, and Loyola Medicine reported to WBEZ they do not utilize these limitations, according to the story by Schorsch.