Why are doctors so vulnerable?

[Aceofspades]

So I'm sure many of you have seen or heard about the whole Facebook and the controversy over it's new terms of use. Many big companies use draconian Terms of Service to protect themselves from lawsuits. Included in these are forced arbitration, limitations of liability, and the popular "we reserve the right to change this agreement at any time without prior notice". In Facebook's policy there is even a line stating " IN NO CASE WILL THE COMPANY'S LIABILITY TO YOU EXCEED $1000".

EULA's, TOC's and other shrink-wrap contracts have been regularly upheld by courts even when the plaintiff claims they didn't read or understand the contract. Why can't doctors implement similar legal language? I understand the concept of informed consent places severe restrictions not experienced by other contractual binding entities, but does anyone know to what extent? Even if a doctor is found guilty of malpractice can he or she put a clause in the medical release form requiring the plaintiff to go through arbitration and/or limit damages? If the doctor incorporates his or her practice then can he or she force arbitration and/or limit damages like other corporate entities and avoid personal liability?

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[dentstd]

So I'm sure many of you have seen or heard about the whole Facebook and the controversy over it's new terms of use. Many big companies use draconian Terms of Service to protect themselves from lawsuits. Included in these are forced arbitration, limitations of liability, and the popular "we reserve the right to change this agreement at any time without prior notice". In Facebook's policy there is even a line stating " IN NO CASE WILL THE COMPANY'S LIABILITY TO YOU EXCEED $1000".

EULA's, TOC's and other shrink-wrap contracts have been regularly upheld by courts even when the plaintiff claims they didn't read or understand the contract. Why can't doctors implement similar legal language? I understand the concept of informed consent places severe restrictions not experienced by other contractual binding entities, but does anyone know to what extent? Even if a doctor is found guilty of malpractice can he or she put a clause in the medical release form requiring the plaintiff to go through arbitration and/or limit damages? If the doctor incorporates his or her practice then can he or she force arbitration and/or limit damages like other corporate entities and avoid personal liability?

You can put anything in a contract. The question is whether the courts will recognize it.

In reference to Facebook's $1000 limit on liability, it could be legit or silliness. It depends on the nature of the case. If Facebook were to severely harm someone, and the damages far exceeded 1k, the courts could deem that contract clause a "liquidation clause." Liquidation clauses are against public policy in certain regions and are not enforced. In short...not all clauses within a contract are enforcable. Lawyers put them in as a scare tactic so that fewer people would sue them. It also serves as obstacles to overcome in the court of law, so the cost to litigate would far exceed damages, making everything worthless. Thus, companies can get away with certain contractual violations.

Doctors CAN put in certain clauses in their contract, those so called "limitations of liability" statements. However, the biggest problem is that it's very unlikely to be enforced by the courts, because the damages done to patients can be devastatingly high. The catastrophic result can be life on a ventilator and millions of dollars. It's just far too unjust for that patient to recover 1k from a liquidation clause.

 

[Pyriots]

So I'm sure many of you have seen or heard about the whole Facebook and the controversy over it's new terms of use. Many big companies use draconian Terms of Service to protect themselves from lawsuits. Included in these are forced arbitration, limitations of liability, and the popular "we reserve the right to change this agreement at any time without prior notice". In Facebook's policy there is even a line stating " IN NO CASE WILL THE COMPANY'S LIABILITY TO YOU EXCEED $1000".

EULA's, TOC's and other shrink-wrap contracts have been regularly upheld by courts even when the plaintiff claims they didn't read or understand the contract. Why can't doctors implement similar legal language? I understand the concept of informed consent places severe restrictions not experienced by other contractual binding entities, but does anyone know to what extent? Even if a doctor is found guilty of malpractice can he or she put a clause in the medical release form requiring the plaintiff to go through arbitration and/or limit damages? If the doctor incorporates his or her practice then can he or she force arbitration and/or limit damages like other corporate entities and avoid personal liability?

Biggest risk to us as healthcare professionals is loss of license, not civil suites. You can put anything you want in a private contract. and even IF you somehow have an awesome contract and the court holds up that contract, the state board can still do whatever they want with you INDEPENDENT of the civil suit.

Just get good insurance. and DO GOOD WORK!! and document document document every single thing. we even document moods and comments at my parents practice. if the patient is "depressed" or "confrontational" or "upset" or "noncompliant" or "having financial difficulties. provided alternate low cost options but pt has decided to postpone treatment" or "appears submissive and resistant to making independent decisions" etc etc. paint a clear picture in a professional manner of what the whole appointment went like. lets the courts know your thorough and cushions you from the patients attempt to turn court into a PERSONAL issue.

welcome to a position of power =) people love to try to tear you down from it.