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Up Front | Jul 2003

Why a Contract for Medical Services Won’t Work

Although based on good intentions, binding arbitration agreements are unrealistic in practice.

The following I submit in response to the article entitled, “The Need for Binding Arbitration Agreements,” by Guy M. Kezirian, MD. Liability issues for refractive surgery, as well as all other types of surgery, must be addressed. I applaud the goals of the “contract approach” to address these issues, and I endorse some of its concepts. Overall, however, I believe this strategy is unrealistic for several reasons.

First, an approach to limit surgeons' liability must work for all areas of surgery, not just refractive surgery. I do not believe that limiting surgical liability to the cost of the surgery in the face of negligence is sufficient.

Second, the “contract approach” replaces the function of a trial with an Arbitration Board consisting of two opposing refractive surgeons and a judge. In my experience, the contract approach is unworkable. Each expert clings to his argument, and the judge, in order not to offend either party too greatly, makes a middle-of-the-road decision for smaller settlements.

Third, it is legally questionable whether or not a pa-tient may be compelled to arbitrate away his right to a jury trial in the circumstance of potential negligence.

Deterrence and Awards
Medical surgery needs a legal system that deters litigation but yet provides adequate compensation for medical negligence that has had devastating effects on the patient's quality of life. Such consequences may include unnecessary blindness, paralysis, and death in all of the medical disciplines.

It is certainly no easy task to design a system that fairly offers both a deterring effect to prevent frivolous lawsuits as well as a legitimate awards benefit for deserving patient sufferers. I propose the following as a system that may achieve both of these goals.

Informed Consent
All informed consent forms should include wording that pertains to specific benefit and risk issues, and patients should be required to copy this wording in longhand (Table 1).

This type of informed consent form would make it very difficult for a patient to claim ignorance of the potential risks and benefits of the surgery. After a trial attorney suggested this idea to me, I began using it in my own practice, and I have not lost a surgical patient as a result of his fear of signing such a document. Rather, I have experienced the opposite; the patient knows that I am being honest about the potential risks and benefits of his surgical procedure.

In addition, such an informed consent form, when read by a plaintiff's lawyer while reviewing the patient's chart, has the desirable effect of removing the issue of informed consent from the case. A patient who not only had to read the informed consent statement, but also copy and sign it, will not easily convince a jury that he misunderstood the risks of the procedure.

Mediation Board
All potential medical malpractice cases must be brought before a Mediation Board before filing. The Mediation Board would consist of one surgeon to represent each party, one lay person, a judge, and a neutral lawyer.

If the Mediation Board voted 4 to 1 or 5 to 0 against the merits of a case, then the plaintiff would be required to post a bond equal to 10% of the desired award before filing the case. If the plaintiff lost the lawsuit, then this bond would be forfeited, and the plaintiff would also be required to pay the defense's court costs. Both sides could also agree to arbitration at this time.

MICRA Limit Lowered
MICRA is legislation that limits pain and suffering awards to a specified limit, and it is in effect in approximately 17 states. The maximum award allowed for pain and suffering should be lowered to $125,000. The present limit of $250,000 still entices many plaintiff's lawyers to “take a shot” at filing a lawsuit in the hope of settling for $125,000. Lowering the MICRA limit will also help maintain malpractice insurance premiums at a reasonable level.

Expert Witnesses
Expert witnesses must practice in the same field and subspecialty as that of the medical issue in question. Those who distort the truth or are untruthful must be sanctioned and fined. The fees paid to expert witnesses should be limited and their payment recorded with the Court.

The measures described herein would still afford a patient the right to a jury trial in the case of a reasonable possibility of medical negligence. However, these measures would also make the pursuit of a frivolous lawsuit rather risky, since the plaintiff and lawyer would be responsible for a significant sum of money if their lawsuit did not succeed.

Although lowering the MICRA limit presents a significant challenge, the other aspects of this plan are well within the realm of possibility. I do not believe that our society will be comfortable mandating deterrence to filing a lawsuit; instead, a mechanism for deterrence must be inherent to the legal system. For these reasons, I propose developing a combination of medicolegal methods as stated above in order to achieve the “contract approach” goals of limiting both liability awards and the filings of clearly unmeritorious lawsuits. n

Lee T. Nordan, MD, is Director of Nordan Laser Eye Medical Group in Carlsbad, California. Dr. Nordan may be reached at (760) 930-9696; lasertn@aol.com.
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