Patient-Doctor Contracts: Will They Sign?

March 20, 2008

Medical malpractice premiums are skyrocketing across the country, even for physicians with clean records. Unfortunately, the high frequency of frivolous malpractice lawsuits has lead to a spike in

Medical malpractice premiums are skyrocketing across the country, even for physicians with clean records. Unfortunately, the high frequency of frivolous malpractice lawsuits has lead to a spike in the physicians' insurance premiums since the start of the decade. Hit hardest are physicians in “high risk specialties” like neurosurgeons, orthopedic surgeons, and OB/GYNS.

In order to remain in practice, many physicians are exploring patient-physician agreements to pre-empt the threat of a lawsuit. The idea is to have the patient agree to terms and procedures for handling a dispute should one arise. Actually, patient-physician agreements are nothing new. Virtually every doctor has patients sign some sort of paperwork agreeing to treatment and acknowledging potential risks as part of the process of "informed consent."

Before CareThe most common form these agreements take is the "binding arbitration" agreement. Put simply, patients agree to waive their right to a jury trial in the case of a dispute and instead go through the faster and more cost-effective process of arbitration. In doing this, physicians can limit their risk, and thus the cost of their insurance, while patients are given an avenue for recourse in the event of a dispute.

In a culture increasingly suspicious of physicians some doctors are concerned about patient reluctance to sign such agreements as they feel that people would be unwilling to waive the opportunity to sue. However, many physicians have found that this is not the case in practice. Dr. Ruth J. Schulze, a New Jersey gynecologist, requires a binding arbitration agreement for new patients and has found that “about 80 to 90% sign up and don't have a problem with it.” Kaiser Permanente, the largest physician insurer in California, requires patients to sign binding arbitration agreements.

Another contract-based strategy that has met with great success is one developed by my firm, Medical Justice. After the unpleasant experience of a frivolous lawsuit after a decade in practice with a clean record, I decided to do something about this problem and created and patented a new contract-based technique.

Reasonable PatientsOur clients are licensed to use the company's exclusive contract that asks patients to agree not to sue for a frivolous reason and to use a properly qualified expert in the event of a legitimate dispute. We were pleasantly surprised to find that most patients are more than happy to sign it. Most people consider themselves to be reasonable individuals and thus feel comfortable with the agreement.

There are a number of reasons for the dynamic success of the program. Not least of which is that it holds all proponents of frivolous cases accountable. The contract asks significantly less of patients than a binding arbitration agreement, as patients are not waiving their right to a jury trial, and it is far less complex to incorporate into a practice.

As for patients who refuse to sign, physicians can still choose to see the patient if they want to. I have found, however, that refusal to sign the contract is often a red flag for the type of patient who will be difficult to work with and quick to sue.

Medical Justice is a program designed by Jeffrey Segal, MD, a board certified neurosurgeon, to protect physicians from frivolous suits—before they occur.