Medical services should be offered under the protection of a contract, which can and should be straightforward. The contract should spell out the legal relationship between the doctor and patient, the obligations of each party, and the avenues for recourse in the event of a dispute. The contract should set terms that are acceptable to both parties and are agreed upon before services are provided. This document should also protect the doctor from unreasonable liability.
A LESS ATTRACTIVE TARGET
Some doctors oppose using contracts for medical services. They say that these documents are cold-blooded and send the wrong message to patients. Most agree, however, that the liability risks doctors face are ruining the practice of medicine. No doctor should be forced to incur millions in potential liability for a $1,500 procedure. Neither should any physician be forced to pay lottery-sized awards that exceed insurance limits.
Today's system of medical liability places us at an absurd disadvantage. It works for the lawyers who can pay $50 to file a suit that may yield millions. Policy limits cap the insurance companies' liability but not ours. Where is the risk to either group? Doctors provide their talent, knowledge, and skill but then risk everything when caring for patients, and they do so without a contract!
The goal of contracts for medical services is not to make us immune to liability. Nothing can do that. Rather, these contracts are designed to make us less attractive targets to plaintiff's attorneys, most of whom work on a contingency basis, meaning they fund the costs of bringing their suits and only profit if they win. To a plaintiff's attorney, the prospect of acknowledging that his client (1) understood the risks prior to undergoing surgery, (2) agreed to arbitration but now wishes to avoid it, and (3) agreed to limit liability but has now changed his mind, all will greatly decrease the appeal of bringing suit. The existence of the contract increases the plaintiff's attorney's workload and likely decreases the amount of the potential payout. A signed contract may be enough to cause attorneys to seek an easier target.
INFORMED CONSENT IS INADEQUATE PROTECTION
The informed consent process does little to protect surgeons and is no substitute for a contract. True, refractive surgery has adhered to a much higher standard of informed consent than most other fields with its quizzes, videos, professionally prepared pamphlets, multipaged lists of risks, and other documents. Even so, we are not protected from litigation. One plaintiff's attorney told me that he relishes LASIK suits that revolve around informed consent, because he can either claim the informed consent was too vague (so it did not cover the specific mishap that occurred) or too complicated (so it could not be understood by the average person). Either way, we are liable.
Some physicians and consultants argue that the method of informed consent in refractive surgery actually increases our risks of liability. It may be impossible to educate patients about all the technical risks, potential visual disturbances, and other hazards of surgery. General descriptions such as the following may be more helpful: “Your vision may be worse after surgery, especially at night, and you may even lose your vision.” A recent trend in informed consent is to eliminate long forms that patients sign and instead have the doctor write in the patient's chart, “The risks, benefits, and alternatives were discussed with the patient,” after which the doctor signs his name.
Despite the lack of protection informed consent affords physicians, it is often the only document that patients must sign regarding their surgery. Rather than protect the doctor, it gives the potential plaintiff a document to use against him. We need a contract.
The provisions contained in contracts for medical services vary depending on the surgeon's preference as well as local rules and regulations. Additionally, some states require contracts to follow specific formats, including font size and color for certain clauses. The list of what physicians need in order to gain protection is short (see Contract Elements).
It is important to prevent the possibility of a patient's saying he did not understand the contract or did not know what he was signing. Contracts should be brief, written in simple language, and contain no small print. They should not be buried within a longer document such as an informed consent, and patients should receive a copy of the contract to take home.THE ARGUMENTs AGAINST CONTRACTS
Objections to the use of contracts for medical service range from the philosophical to the pernicious. Some surgeons fear that a contract will cause patients to seek surgical services elsewhere, but this objection will become moot if a sufficient number of physicians employ contracts. Moreover, the patient who will not relinquish his right to sue a surgeon may have ulterior motives, so the contract may serve as a valuable screening tool in such cases.
Several ophthalmologists have broached the idea of contracts with their local and state societies in order to convince their colleagues to use contracts as well. Some have attended general medical meetings in an effort to spread the practice beyond refractive surgery. Clearly, refractive surgeons are not the only ones facing problems of outrageous liability. Contracts should be used throughout the medical field, especially for elective surgery.
Attorneys often point to the arbitration clause as a source of increased risk to the surgeon. They argue that arbitration often results in a split decision, so the chance of surgeons' paying some amount of money increases. Although this assertion is probably true, defining within the contract that the composition of the panel must include two refractive surgeons (one chosen by each side) and a third party selected mutually by the arbitrators may help to prevent unjust settlements.
Some insurance companies have also objected to the use of contracts for medical services and claim that they can provide physicians with better protection against awards in court than can arbitration. I personally find these carriers' motives suspect and believe they view contracts for medical services for what they are—better protection than insurance. After all, if our liability can be limited, then why do we need insurance companies? Insurance carriers charge outlandish premiums that rise yearly, and they have nearly monopolistic status and free reign (in most states) to charge what they will. To make matters worse, these companies shunt any excess liability beyond insurance limits to the physician, who carries the liability for excess losses. If we cease fearing malpractice claims, insurance carriers will no longer have an advantage over us. I believe their objection to arbitration is disingenuous.
None of the objections just described invalidates the use of contracts for medical services. The goal of a contract for medical services is not to make us bulletproof but to render us less attractive targets. Even if some of the objections just outlined are legitimate, a well-written contract will be better protection than what we have now.
Do contracts for medical services hold up in court? Depending on the state in which you work and what is included in the contract, the answer is yes. Some states such as California have enacted legislation that permits contracts for medical services that provide for arbitration and limit awards. They even specify the language to be used in the contract and require the following statement in a bold, capitalized, red typeface:
Other states, including Texas, specifically prohibit arbitration agreements by healthcare professionals unless the documents are signed by the patient's attorney (what a conflict of interest!). Arizona specifically bans caps on awards in its constitution, and other states apply their own restrictions. A provision within the contract that requires patients to assign back to the surgeon any awards beyond a stipulated cap may or may not hold up in court; the concept needs to be tested. Encouragingly, federal tort reform legislation is currently under consideration that may preempt state laws and provide a federal limit on liability. Regardless of local rules and regulations, contracts can help define the legal relationship between physicians and their patients, and they should be used consistently. Otherwise, we are playing Russian roulette with a legal system biased against us.
Contracts should be customized by each physician in accordance with state rules to create the most enforceable and protective document possible. As noted earlier, the document should not be bundled with HIPAA agreements, informed consents, and registration forms. Patients must be able to review the contract carefully and understand it. They should not be tricked into signing the document. Once you decide to use a contract, it should be presented to every patient. Selective use is potentially offensive. If a patient refuses to sign, then he should receive no medical service.
THE BIG PICTURE
Benefits of Widespread Use
The successful proliferation of contracts for medical services will divide surgeons into two groups: survivors and targets. The risks of providing medical services without the protection of a contract are too high. Doctors need to dictate the terms under which they work. Allowing attorneys and insurance companies to set the rules has created a system that does not provide adequate protection for physicians.
In addition to contracts for medical services, tort reform is necessary. Despite success in the House of Representatives, federal tort reform legislation faces opposition in the Senate. The current effort has been stalled by individuals who think it sides too much with people who believe the legislation does not go far enough. In other words, the trial attorneys' lobby is effectively blocking the effort, and I am not optimistic that federal tort reform will provide significant protection to practicing physicians any time soon.
Evaluating Expert Witnesses
A systematic review of expert witnesses is also sorely needed. Such an evaluation would be simple to accomplish but would require our medical societies to take a leadership role that might pit them against some of their most prominent members. The process would entail creating a board that reviews the testimony of expert witnesses to verify that their statements can be supported by the published literature and then publishing the results of the reviews to make them available to attorneys. This effort would discredit those experts who willingly support frivolous claims and effectively remove from the legal system those whose testimony is for sale.
The larger ophthalmic societies would be the best entities to organize such a board. Participation on the board could rotate and even become a requirement of membership. The burden to any individual would be minimal, while the benefit to our profession would be immeasurable.
The current system of liability is out of control and puts the field of medicine at risk. Refractive surgeons are particularly vulnerable due to the subjective nature of visual complaints and the recent trend of awards that exceed insurance limits. Although efforts for federal tort reform and the establishment of boards to validate the testimony of expert witnesses hold promise for the future, we require protection now. The widespread use of contracts for medical services will enable us to set the terms of how we provide our services.
Guy M. Kezirian, MD, FACS, is a board-certified ophthalmologist and President of SurgiVision Consultants, Inc., an ophthalmic consulting company in Paradise Valley, Arizona. He is not an attorney, and the comments provided herein are not meant as legal advice. Dr. Kezirian may be reached at (480) 348-9299; firstname.lastname@example.org.