June 2010 - Send in the Clowns

by Justice William W. Bedsworth

There were no lawyers in my family, so lawyer jokes were considered fair game. To the rest of the world, lawyers are the perfect game animals: big, slow afoot, and tasty.

And since my roots are in the South, most of the jokes involved southern lawyers. One I loved as a boy involved a criminal defense attorney explaining to the jury in closing argument why they should acquit his client of theft:

“Y’all have watched my client here in court for five days. He is not an attractive man. Hell’s fire, let’s be honest, folks, he’s ugly as sin.”

“And y’all heard him testify. You know he’s not the sharpest tool in the shed. Having worked with him for several weeks now, I can attest to the fact he has the personality of an elm stump and the IQ of a lemon meringue pie. Boy’s dumber ’n a bag of hammers.”

“So I ask you now to consider those facts in light of your own experience and your knowledge that our God is both all-powerful and all-merciful. And I know if you do that, you will have to acquit. I mean, think about it, folks, would an all-powerful and all-merciful God make a man ugly and stupid AND a thief?”

Now THAT’S a closing argument.

I’ve taken comfort from that story over the years when I thought I understood something and judges or attorneys insisted I was wrong. I would simply remind myself that an all-powerful and all-merciful God would not have made me unattractive, unhealthy, AND stupid.

Now we might argue over the logic of that statement.(1) Indeed, if you practice in Orange County you may already have had occasion to argue my stupidity with me . . . in court. But the major and minor premises of the syllogism are pretty solid—especially the unhealthful one.

So far, I have had a tonsillectomy, an appendectomy, subacute bacterial endocarditis I and II, facial paralysis I, II, and III, multiple kidney stones, several dislocated joints, a lifetime of migraines, asthma, knee surgery, hip replacement surgery, two oral surgeries, kidney surgery, brain surgery, and heart surgery. This is, truth be told, your basic bad body.

So I know my way around a doctor’s office. And the fact these people have kept me shiny side up through all these travails has made me a big fan of the medical profession. I am loath to second-guess them when it comes to medical judgment.

Which makes it all the more surprising to me that they are so anxious to practice law. Every time I go in there, they hand me contracts that require me to waive most of my constitutional rights, all of my free will, and at least three guarantees of the Magna Carta. “The doctor will see you as soon as you sign this.” And, of course, signing it requires me to agree to arbitration.

I used to fight this. I am, of course, part of the very system they want me to opt out of. I believe in that system. Asking me to agree to arbitration is like asking a Roman Catholic cardinal to agree that his afterlife will be decided by a panel of Lutherans.

So I would refuse to sign the form, and the receptionist would look at me like I had walked in with a bomb strapped to my chest and a remote control in my hand.

She would send me back to see the doctor, who would sit down with me and explain that his lawyer drew up this form—often a lawyer I knew—and that he would treat me without it if I insisted but he would really appreciate it if I would sign it.

And I, to my utter amazement, would be so charmed and beguiled by how reasonable he was being, so anxious to be as nice as he was, that I would sign it and give up my right to jury trial, my right to counsel, my Eighth Amendment rights, my Faretta rights, my mineral rights and my first born.

I was so easy.

After awhile, I just stopped reading them. Like most people, I want fast treatment more than I want a good forum, so I now skim the form and sign it. Someday an unscrupulous dentist will probably hold a quitclaim on my house.

My wife, on the other hand, approaches arbitration agreements the same way she approaches snakes she comes across hiking in the canyons: She is determined only one of them will come out alive, and utterly convinced her bite is worse than theirs.

Kelly takes no prisoners. She not only refuses to arbitrate, she demands a jury trial before a panel of plaintiffs’ attorneys. She crosses out provisions in the form, writes in her own, adds codicils and appendices, and pretty much agrees to nothing other than her willingness to stop suing when the doctor proves he is out of money and has no solvent living relatives.

When it comes to arbitration agreements, Kelly is not so much an attorney as a flame-thrower.

So when she went in for her yearly mammogram last week, it figured to be the worst mismatch ever that did not involve anyone named Reno or Benteen.

Sure enough, they had stuff they wanted her to sign. But this time, it involved electronics. They had her sit at a desk with a little screen and asked her to sign the “agreement” on the screen. Kelly girded her loins(2) and started in on what the screen entitled “Condition of Admission.”

The first thing she noted was that it was a singular “condition” rather than plural “conditions.” That would have been encouraging except for the fact the first heading, “Physicians are Independent Contractors” was numbered “7.” One of the things Kelly has learned in 25 years of practice is to distrust documents that BEGIN with “7.” Obviously there was more than one “Condition of Admission.”

But my wife is a reasonable woman. She was willing to give these people a chance. She read and initialed Provision 7.

But Provision 8, entitled “Acknowledgments,” said, “This is to acknowledge that the undersigned has been given the Notice of Privacy Practice, Important Patient Information, Patient’s Rights and Responsibilities and patient Safety Statement.” So Kelly asked for them.

The receptionist looked at her like she had suddenly begun speaking in tongues. “Those are just acknowledgments,” the receptionist said. “They just mean you acknowledge the conditions under which you’re being treated.”

“And what are those?” Kelly asked. “What are the conditions?”

The receptionist now realized she had a troublemaker on her hands. This woman actually wanted to KNOW the conditions under which she was being treated, before agreeing to them. Danged harpy.

The receptionist left and returned with a sheaf of papers. Anyone who has practiced civil litigation—and Kelly has—knows this technique: Bury them in discovery.

Kelly was not at all intimidated. She pulled out her red pen and began marking them up. By the time she was halfway through, the “Condition of Admission”—all four pages of it—looked like the battlefield at Antietam.

Kelly was writing “I do not agree,” and crossing things out, and just generally lopping off clauses like she was Innocent I, going through and weeding out unacceptable gospels to arrive at today’s Bible.

She was, however, a little non-plussed when she came to a provision that required her to agree to the release of information and provided, “If the patient(3) or the patient’s legal representative(4) does not want such information to be released, he/she may check the box indicated below.” There was no box.

Kelly pointed this out to the receptionist. Her response was, “Oh, we would never disclose any information about you unless you agreed.”

“But that’s exactly what it says you will do unless I check the non-existent box,” Kelly protested. Kelly’s not sure, but she thinks this is when the receptionist suggested she might be in the wrong office and asked if she was looking for psychiatric care. Which would have explained the “Consent to Photograph” provision.

That provision provided, “During hospitalization, the patient may be visited by celebrities, clowns, musicians, or other entertainers.” It went on to require, as a “condition of admission” that Kelly agree to being photographed with these people. Honest.

Really? Clowns? She came in for a mammogram and they were refusing to do it unless she agreed to be photographed with clowns?

That’s what it said. It said, “The pictures may be used in newspapers, magazines, on television, or in hospital publications.”

I’ve never had a mammogram.(5) Kelly tells me they’re unpleasant, and I can understand—and even fully support—efforts to make them more enjoyable.

Musicians . . . entertainers? Maybe a good idea. Cutting edge medicine.

But clowns? In the middle of a discussion about legal rights and forums the hospital inserts a clause about clown photos? That just seemed so random and bizarre that Kelly not only wrote in Antietam red ink her refusal to agree to it, but questioned it to the supervisor she was now dealing with.(6)

That’s when it began to dawn on them that maybe this was not a problem patient. Maybe these were problem documents.

Sure enough. Seems the little hospital in our town was recently swallowed—or rescued(7)—by a much bigger hospital. The bigger hospital is a chain which includes a children’s hospital. When they took over the smaller hospital, they wanted to use their own forms, but mistakenly sent over some from the children’s hospital.

Clowns and ballplayers and celebrities often show up at children’s hospitals and their visits are photographed. Not so much at mammograms, it turns out.(8) The hospital figured out the mistake and gave Kelly a different set of forms.(9)

So if you’re going in for a mammogram in the near future, you can rest easy: You will not be required to pose for photos with clowns. My wife has slain that dragon for you.

As the old southern lawyer would have put it, in a world presided over by an all-knowing and all-merciful God, no one should be required to submit to a mammogram, wear a hospital gown, AND be photographed with clowns.

Beds Notes
(1) Actually, “logic” kind of overstates the case; it’s more like intellectual comfort food.
(2) I have no idea what that means, but it sounded vaguely sexy, and I thought it might spice up the story.
(3) That would be Kelly.
(4) That would be Kelly.
(5) I’m not sure why that is, since my gender clearly has mammos. But apparently gramming them is a form of torture insurance companies reserve to women.
(6) By the time she refused to sign the clown codicil, Kelly was two levels of supervision above the receptionist. One more problem and they were going to turn her over to their leg-breaker.
(7) In business, as in life, the distinction can sometimes be a fine one. Ask Jonah.
(8) Which is probably just as well.
(9) The forms had been used for months—apparently without incident, thus confirming Kelly’s belief she is the only person left on the planet that reads these things.


William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted via email at william.bedsworth@jud.ca.gov.