can doctors make a contract with patients?

[bearpaw]

Can doctors have patients sign a contract saying they can't sue the doctor for anything, including gross negligence? I mean, your phone company, cable company, insurance company, etc. all make us sign contracts saying we can't hold them to mistakes (for instance, someone could say "my daughter died because my cell phone wasn't working and i couldn't get 911"), so maybe doctors can do something similar. Its not like we'd offer worse care, but that way there is no way we can get sued.

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[bigdan]

It's my understanding that nothing can keep you from being sued. A contracted agreement may keep someone from winning the suit, but if someone files a suit (the lawyer is willing to pursue a case), you'll have to pay to defend it.

There's a fella on SDN named Juddson that is an attorney. You may try PMing him for verification.

dc

 

[samurai_lincoln]

Can doctors have patients sign a contract saying they can't sue the doctor for anything, including gross negligence? I mean, your phone company, cable company, insurance company, etc. all make us sign contracts saying we can't hold them to mistakes (for instance, someone could say "my daughter died because my cell phone wasn't working and i couldn't get 911"), so maybe doctors can do something similar. Its not like we'd offer worse care, but that way there is no way we can get sued.

Most of these contracts we sign, purportedly giving away our rights, are not worth the paper they are printed on in reality. Companies just do it to scare away consumers from bringing lawsuits. These are considered "contracts of adhesion" and thus invalid, since the consumer has virtually no bargaining power and is forced to sign the contract to obtain the service. I would think the law would look even more unfavorably upon such contracts in the case of an essential service like medical care.

And one can never contract away liability for gross negligence or intentional torts (there may be an exception somewhere, of course, but I doubt it). Our prior differences aside, do have to admire your creativity here though 🙂

 

[MacGyver]

Most of these contracts we sign, purportedly giving away our rights, are not worth the paper they are printed on in reality. Companies just do it to scare away consumers from bringing lawsuits. These are considered "contracts of adhesion" and thus invalid, since the consumer has virtually no bargaining power and is forced to sign the contract to obtain the service. I would think the law would look even more unfavorably upon such contracts in the case of an essential service like medical care.

And one can never contract away liability for gross negligence or intentional torts (there may be an exception somewhere, of course, but I doubt it). Our prior differences aside, do have to admire your creativity here though 🙂

If this is true, it doesnt make any sense. I know for a fact that contracts between businesses are considered legally binding if done the right way, and I see no reason as to why individuals are forbidden from entering into such contracts.

Your reasoning of the patient having no bargaining power doesnt hold water either, because it assumes that a monopoly or near-monopoly of health care services exists in this country, which is not true at all. A prospective patient is under no burden to sign with a particular doctor--they are perfectly free to walk down the street to the other doc/HMO/etc if they dont like the current contract offering.

This smacks to me as an example of the "required professional" philosophy that lawyers like to use. In other words, they purposefully make things as complex as possible so people are FORCED to hire lawyers.

Remember this: defense lawyers love it when their clients are sued. Defense lawyers are some of the biggest proponents of the lawsuit lottery status quo.

 

[samurai_lincoln]

If this is true, it doesnt make any sense. I know for a fact that contracts between businesses are considered legally binding if done the right way, and I see no reason as to why individuals are forbidden from entering into such contracts.

Your reasoning of the patient having no bargaining power doesnt hold water either, because it assumes that a monopoly or near-monopoly of health care services exists in this country, which is not true at all. A prospective patient is under no burden to sign with a particular doctor--they are perfectly free to walk down the street to the other doc/HMO/etc if they dont like the current contract offering.

This smacks to me as an example of the "required professional" philosophy that lawyers like to use. In other words, they purposefully make things as complex as possible so people are FORCED to hire lawyers.

Remember this: defense lawyers love it when their clients are sued. Defense lawyers are some of the biggest proponents of the lawsuit lottery status quo.

Listen, I'm not making this crap up for giggles. The law is that boilerplate adhesion contracts are usually unenforceable when it comes to consumers. Yes, contracts between businesses are legally binding, as they considered "sophisticated" parties and have the opportunity to negotiate terms and hire counsel prior to entering the transaction. However, consumers are afforded additional protections when entering into contracts with merchants and service providers.

As for your counterargument that the patient is free to choose amongst many different providers... yes, this is true in some situations. But there are also many instances where this may not be the case, such as in a remote rural town or a highly specialized area of practice. And many people show loyal allegiance to their family doc and would not be willing to change. In any case, service providers are generally viewed as "unique" in the eyes of the law, i.e. getting your tonsils removed by Dr. X is different from having Dr. Y do the deed, even though they are performing the same operation. In essence, you are bargaining for a completely different service if you go to another doctor, since they are not fungible.

Finally, I would think that courts would look with particular disfavor upon a waiver of rights in the area of health care, which is considered a necessity. From a contracts hornbook I have on the shelf (note: adhesion = essentially forced to sign to get the product or service):

"Many kinds of adhesion contracts are unenforceable because they are signed against public policy. A contract requiring an individual who needs an essential public service, such as medical care, to waive any claim for negligence on the part of the provider is likely to be found contrary to public policy and therefore unenforceable." (emphasis added)

I think that sums it up better than I did.

 

[ericdamiansean]

I thought that laws are different in every state and country.

If I were to make the patients sign a contract stating that he/she is not liable to sue me if anything were to go wrong, I'm pretty sure that he/she would not be so happy to consult me because it seems that I'm not sure of what I am doing, thus I am protecting myself BEFORE I am even doing anything.

But, if a patient agrees to sign it, I guess if it's pursued in court, it'll get thrown out because the patient has already consented both verbally and in paper that he/she will not pursue any legal matters if I were to do something wrong.

However, the question is, does the court have the right to over rule the verbal and written consent?

 

[fullefect1]

You guys are talking way to much lawyer talk for me.

 

[willthatsall]

Listen, I'm not making this crap up for giggles. The law is that boilerplate adhesion contracts are usually unenforceable when it comes to consumers. Yes, contracts between businesses are legally binding, as they considered "sophisticated" parties and have the opportunity to negotiate terms and hire counsel prior to entering the transaction. However, consumers are afforded additional protections when entering into contracts with merchants and service providers.

As for your counterargument that the patient is free to choose amongst many different providers... yes, this is true in some situations. But there are also many instances where this may not be the case, such as in a remote rural town or a highly specialized area of practice. And many people show loyal allegiance to their family doc and would not be willing to change. In any case, service providers are generally viewed as "unique" in the eyes of the law, i.e. getting your tonsils removed by Dr. X is different from having Dr. Y do the deed, even though they are performing the same operation. In essence, you are bargaining for a completely different service if you go to another doctor, since they are not fungible.

Finally, I would think that courts would look with particular disfavor upon a waiver of rights in the area of health care, which is considered a necessity. From a contracts hornbook I have on the shelf (note: adhesion = essentially forced to sign to get the product or service):

"Many kinds of adhesion contracts are unenforceable because they are signed against public policy. A contract requiring an individual who needs an essential public service, such as medical care, to waive any claim for negligence on the part of the provider is likely to be found contrary to public policy and therefore unenforceable." (emphasis added)

I think that sums it up better than I did.

I've heard the same thing from a business law professor. I was quite surprised.

Not about the medical aspect, but about those contracts not being worth crap legally.

 

[samurai_lincoln]

I've heard the same thing from a business law professor. I was quite surprised.

Not about the medical aspect, but about those contracts not being worth crap legally.

Even though adhesion contracts aren't enforceable, they do serve some purpose as a scare tactic, however, as many consumers see the language and believe it to be airtight. That is why so many companies utilize them... the legal fees are minimal compared to the savings in scaring off law suits.

As mentioned above, this technique may alienate potential patients, so maybe not a great business idea overall. Medical care is much more personal than buying a cell phone.

To ericdamiensean: yes, laws vary from state to state. However, I am talking about general principles here, that are held in virtual unanimity. This is first year contracts stuff, not real esoteric.

 

[DrTex?]

Different laws apply to different countries, but if your going to practice in the US, that's just the way it is.
If there was a silver bullet to avoid paying malpractice insurance and avoid getting sued, why would so many intelligent physicians be doing it the way they are now?

 

[ForensicPath]

Making a patient sign a contract like that, regardless of its legality, is simply bad for business. I know I would never go to a doctor that made me sign a contract like that.

 

[MacGyver]

Listen, I'm not making this crap up for giggles.

I didnt say that. I said that if you were in fact right, that its a bull**** reasoning system.

The law is that boilerplate adhesion contracts are usually unenforceable when it comes to consumers. Yes, contracts between businesses are legally binding, as they considered "sophisticated" parties and have the opportunity to negotiate terms and hire counsel prior to entering the transaction. However, consumers are afforded additional protections when entering into contracts with merchants and service providers.

Fine, I've got no problem with having special extra burdens that have to be met in terms of contracts with individuals. But thats an ENTIRELY different thing to say that ALL CONTRACTS between individuals are de facto worthless.

As for your counterargument that the patient is free to choose amongst many different providers... yes, this is true in some situations. But there are also many instances where this may not be the case, such as in a remote rural town or a highly specialized area of practice.

Thats not unique to medical care. Are you saying that a lawyer in such a situation is free to write contracts with individuals? The system should at least attempt to be consistent, instead of putting medical care professionals at a distinct disadvantage SOLELY because they are in the health care business.

And many people show loyal allegiance to their family doc and would not be willing to change.

So what, thats their problem and their personal decision.

In any case, service providers are generally viewed as "unique" in the eyes of the law, i.e. getting your tonsils removed by Dr. X is different from having Dr. Y do the deed, even though they are performing the same operation. In essence, you are bargaining for a completely different service if you go to another doctor, since they are not fungible.

Like I said, if thats true, then its bull****. There is zero justification for such an idiotic view.

Finally, I would think that courts would look with particular disfavor upon a waiver of rights in the area of health care, which is considered a necessity.

They dont really consider it a necessity. Food is a necessity but yet they are free to engage in contracts. Housing is a necessity and contracts are allowed. This sounds like a purely arbitrary distinction of health care based on some idealistic propaganda that health care is a right (which its not).

From a contracts hornbook I have on the shelf (note: adhesion = essentially forced to sign to get the product or service):

"Many kinds of adhesion contracts are unenforceable because they are signed against public policy. A contract requiring an individual who needs an essential public service, such as medical care, to waive any claim for negligence on the part of the provider is likely to be found contrary to public policy and therefore unenforceable." (emphasis added)

I think that sums it up better than I did.

Well, its still bull**** reasoning. They are applying a purely arbitrary distinction to healthcare and arbitrarily excluding other services which are just as needed.

 

[samurai_lincoln]

MacGyver, I think we are on two totally different pages here. I am NOT talking about the contract being void in totality, where the patient would have no obligation to pay the doctor for services. What IS invalid is any attempt to avoid liability simply by slapping in a boilerplate clause into a contract. This is not unique to the medical profession. Lawyers similarly cannot avoid malpractice suits by utilizing such techniques in their retainer agreements. Nor can, for example, your utility company by making you sign a service agreement. I have no idea where you get the idea the law is singling out doctors, but that just happens to be the specific situation we are discussing.

Yes, this does somewhat impinge upon "freedom of contract" principles, but there are many contracts that are unenforceable due to public policy considerations, such as where the subject matter is illegal (buying illegal drugs, contract to kill someone, usurious loan rates).

Maybe I didn't make my previous posts clear enough, but I also suspect at this point you may just be arguing for argument's sake. You may think the public policy justifications are BS, but they are what they are. Not every consumer is as brilliant and savvy as yourself, so blanket protections are afforded by the law.

 

[juddson]

However, the question is, does the court have the right to over rule the verbal and written consent?

The answer is yes, for all the reasons set forth above.

BTW, it is against the Code of Professional Responsibility and the Rules of Professional Conduct (as well as almost certainly unlawfull in many states) for a lawyer to disclaim his being subject to a suit for malpractice by his clients. Even suggesting such a thing is punishable.

I would not be surprised if whatever code that controls medical ethics also prohibited a doctor from disclaiming responsibility for his negligence - and to do so might very well subject him or her to discipline before his or her state medical board. The idea that a doctor would say to her patient "this form says I have no legal duty to exercise due care in your treatment - please sign here" is ridiculous.

Judd

 

[juddson]

Making a patient sign a contract like that, regardless of its legality, is simply bad for business. I know I would never go to a doctor that made me sign a contract like that.

Frankly, i would not see a doctor who required one of these contracts either. I'm not sure I object quite as much to arbitration provision, though.

Judd

 

[Fermata]

Frankly, i would not see a doctor who required one of these contracts either. I'm not sure I object quite as much to arbitration provision, though.

Judd

Have you moved out yet? Close to campus I mean....
3 years of law school + 4 years of med school + atleast 3 years of residency....that's a lot of school, my friend. 😀

 

[Fermata]

I would not be surprised if whatever code that controls medical ethics also prohibited a doctor from disclaiming responsibility for his negligence - and to do so might very well subject him or her to discipline before his or her state medical board. The idea that a doctor would say to her patient "this form says I have no legal duty to exercise due care in your treatment - please sign here" is ridiculous.

Judd

Apparently Plastic Surgeons are big on getting people to sign these things. Then again, it revolves around the cosmetic after-effects of a surgery....

 

[juddson]

Have you moved out yet? Close to campus I mean....
3 years of law school + 4 years of med school + atleast 3 years of residency....that's a lot of school, my friend. 😀

I'm afraid I don't know what you mean. I don't live with my parents, if that is what you are getting at. I own a house with my wife and two children (well, 1.9 children - the newest will be born next month) in a suburb about 30 minutes from my medical school.

judd

 

[juddson]

Apparently Plastic Surgeons are big on getting people to sign these things. Then again, it revolves around the cosmetic after-effects of a surgery....

yea, i can see this sort of thing in the limited circumstances of plastics because the results are so subjective and the doctor is, in effect, selling the results. Normal docs don't sell results.

Judd

 

[Fermata]

I'm afraid I don't know what you mean. I don't live with my parents, if that is what you are getting at. I own a house with my wife and two children (well, 1.9 children - the newest will be born next month) in a suburb about 30 minutes from my medical school.

judd

Congrats on the new kid.

 

[W222]

I heard of two occasions where doctors were using signed contracts to avoid lawsuits. One was in Mississippi, because this Doc was one of the few OB/Gyn's left in the state and he was going to close his practice if he had to pay insurance premiums, so he dropped his insurance and told all patients that he dropped his insurance and if they still wanted to be treated they would have to sign a contract barring them from suing. This was written in a Money magazine article regarding malpractice costs.

I also was told by a PA, that a Doctor he worked for (an internest) used to tell the parents of children he was seeing that he was not trained in pediatrics and that it was their decision if they wanted further treatment knowing he was not trained in pediatrics.

 

[bewitched1081]

they can make you sign an agreement that says that you will take any disputes to an arbitrator

 

[MacGyver]

I would not be surprised if whatever code that controls medical ethics also prohibited a doctor from disclaiming responsibility for his negligence - and to do so might very well subject him or her to discipline before his or her state medical board. The idea that a doctor would say to her patient "this form says I have no legal duty to exercise due care in your treatment - please sign here" is ridiculous.

Judd

Come on judd I expect better from you than that. The contract does NOT say "I can **** you up and there's nothing you can do about it."

It says "you cant sue me"

Enormous difference between those 2 things.

I know you lawyers like to perpetuate the myth that money/lawsuits are the ONLY way to remedy a situation, but thats simply not true.

 

[Gleevec]

I think a contract to not sue is a little too much at this point. A contract for arbitration sounds like a good compromise though.

I wouldnt sign the former contract, but I could definitely bring myself to sign the latter.

 

[juddson]

Come on judd I expect better from you than that. The contract does NOT say "I can **** you up and there's nothing you can do about it."

It says "you cant sue me"

Enormous difference between those 2 things.

I know you lawyers like to perpetuate the myth that money/lawsuits are the ONLY way to remedy a situation, but thats simply not true.

I chose my words very carefully. There is not a SHRED of difference between what I wrote and what you wrote. Think about it for a minute and tell me you still disagree.

judd

 

[meanderson]

For the vast majority of medical procedures, what patient would sign this contract? It's not like there is only one optho in the whole state to do your cataract surgery or one cardiologist to do a cath. I'd have these procedures done by physicians who didn't require such contracts to be signed, as it's just not realistic to expect all physicians to go along with the contract thing.

 

[edmadison]

they can make you sign an agreement that says that you will take any disputes to an arbitrator

In some states this is true, in others it is not. We discussed this topic a few months ago and I looked at several states. I believe Utah was one that had specifically permitted arbitration agreements and Texas was one that prohibitted them (my memory may be failing me however). On another front, many of these so called "contracts" may simply be disclosures. In one of the earlier examples, the internist was disclosing that he was not a specialist in the treatment of children, thus the standard of care applicable might be lower, such as a GP instead of an FP or Pediatrician. Disclosures are also intended to protect the provider from "failure to warn" suits which apply a strict liability standard rather than a negligence one. These may be what the plastic surgons are using them for.

Ed