By ANNEMARIE FRANCZYK

New York's doctors believe that meaningful reforms to the state's civil justice system could get them out from under dramatically rising liability premiums.

Doctors elsewhere, however, are skirting their civil justice systems by settling medical malpractice complaints outside of court. They're able to do this by getting patients to sign away their right to a file a lawsuit long before a problem arises.

Proponents say the practice saves time and money for all involved, but critics maintain it works against consumers who unwittingly agree to the fine print in the contracts. And arbitration still costs money because lawyers are involved in the process, they say.

Such predispute arbitration clauses have been included in contracts by credit card, auto, cell phone and other consumer industries include. The provisos specify that future disputes will be reviewed by a third party who will make a decision that is legally binding for both sides.

The practice is become common in part in California where doctors are given premium breaks if they sign up for polices that include the clauses. It popped up among Pennsylvania doctors about six years ago during a malpractice crisis.

New York's doctors are facing their own liability crisis. Members of the state Medical Society this month marched on Albany to press for tort reform, prompted in part by last year's average 14 percent jump in premiums, the highest increase since 1994.

Even so, health-care providers such as the Buffalo Medical Group, the largest physician practice in the region, find predispute arbitration agreements disingenuous.

"The Buffalo Medical Group focuses on delivering the highest quality care," said medical director Dr. Irene Snow, "and it is our belief that pursuing arbitration agreements is inappropriate and not consistent with the mission of the group."

And they just might prove to be impractical by scaring away potential patients, others say.

There are no premium discounts for any New York health-care provider who would use a predispute agreement. The state Insurance Department doesn't even allow malpractice insurers to write them into policies.

"We've never approved a policy form that would impose arbitration on a third party claimant," a department spokesman said. "The policy contract is between the insurer and the insured policyholder."

That doesn't make the agreements illegal, or unenforceable, however, they could be litigated. Judges likely would be skeptical, legal experts say.

The courts generally enforce arbitration clauses in commercial contracts, said Donald Moy, senior vice president and General Counsel of the state Medical Society. Exceptions would be made in the case of a doctor-patient contract, however, if the patient was pressured or told that care would be withheld until the agreement was signed, he said.

Who ultimately prevails in these arrangements is unclear. Favor might tip toward health-care providers, since consumers enter the system by necessity, in need of care, said James Robb, senior vice president of Medical Liability Mutual Insurance Co., which writes medical malpractice plans in New York.

Other experts say patients might capitalize on that neediness by arguing they were not made aware of what they were signing or given enough time to consider the consequences.

Trial attorney Victor Oliveri, senior partner with Gibson, McAskill & Crosby LLP, said he has never seen the agreements used in his 30 years of defending doctors and hospitals in Western New York. Most medical error disputes between patients and providers are usually settled by the parties themselves through their attorneys and many times with the assistance of local judges assigned to the cases, he said.

When parties are unable to resolve a claim, they are inclined to proceed into the court system and toward trials with all the protections of formal rules of evidence and jury verdicts. Though the multi-million-dollar verdicts awarded to patients get the splash in the media, Oliveri said, most trials conclude in favor of the defense .

"When health care providers sincerely believe they did nothing wrong, and they want to have themselves exonerated, they go before a jury," Oliveri said.

The process is a costly one for all involved. Plaintiffs and defendants both must hire attorneys and expert witnesses. Defendants are required to be present in the courtroom for weeks or months, Oliveri said, "resulting in lack of patient coverage and at times serious damage to doctor and hospital services."

Dentists who are members of the state Dental Association are compelled to comply with a peer-review process that is a variation on the predispute agreement option.

After a problem occurs, dental patients have an option to submit a complaint to the local dental society and sign a peer-review agreement. Signing the agreement waives the patient's right to recompense with the courts, said Dr. Steven Damelio, a Rochester dentist and chair of the state association's peer review and quality assurance committee.

In this process, the patient can go after a refund of money for care provided. No damages. No pain and suffering.

The first step is mediation, and if an agreement isn't reached, the case goes deeper into the peer-review process for further examination. The process trends toward the patients in well over half of the cases, Damelio said.

"For the patient, it's much less cumbersome. There are no lawyers, no court costs," Damelio said. "For the society, it polices its own and it protects the doctors from frivolous lawsuits."