March 10, 2011
We’re starting to hear more and more examples of doctors asking – sometimes demanding – new patients & families read and sign documents promising not to file frivolous lawsuits, agreeing to arbitration, etc. A year ago a close friend came home with one of these documents asking her upfront to agree to arbitration should anything go wrong. I told her to throw the stupid thing away, and if the practice pushed the issue to leave and find another physician.
In some ways these documents remind me of the signs hanging next to county fair rides: “We assume no liability for any injuries or death.” Yeah, right. Any good lawyer (defense or plaintiffs) will tell you the carnie signs are legally worthless, and so are these documents peddled and pushed by physicians and their staff. Furthermore, these documents risk alienating patients and families, and getting relationships off on the wrong foot.
This is a shame, because I think we’re missing a real opportunity here for both doctors and patients/families to start and create strong relationships rooted in mutual trust and respect. Read my attempt an accountability document below – and I welcome your comments.
SORRY WORKS! PATIENT ACCOUNTABILITY DOCUMENT
“I want to be your physician. I want to enter in a relationship with you built on trust and respect whereby we become teammates working together to improve your health.
Though rare, medical errors do happen. If there is ever a problem or potential medical error, I will remain committed to you and our relationship. I will empathize and take care of your immediate needs, and then investigate to learn what happened. If necessary, I will apologize for errors and be committed to seeing that all of your needs, medical and otherwise, are met. I will never engage in a frivolous defense or cover up. You deserve the truth from me at all times.
As the patient, you must be equally committed to our relationship. Please keep your appointments with me, but, if you must cancel an appointment, please give my office staff as much advance warning as possible so we can give your time slot to another patient.
Before arriving for a visit, please take time to consider and write down any questions or concerns so you can share them with me in an efficient manner. If you have an especially long list of questions/concerns, you may consider talking to my staff to schedule a second appointment so I can give you the appropriate amount of time.
If necessary, you may consider bringing a friend or family member to visits to help you understand my diagnoses and recommendations. Two heads are always better than one!
Please follow my advice. If you have questions or concerns about my advice, please tell me or my staff, and, again, you are always welcome to obtain a second opinion. But, silence helps nobody.
Please fill my prescriptions and follow the directions given to you by the pharmacist. If you have questions or concerns about my prescriptions – including inability to pay – please let me or my staff know. We understand drugs costs can sometimes be very high, but there are many ways we can help with samples, coupons, or, perhaps, a different prescription. But, silence helps nobody.
When in doubt about anything, call my office or the exchange, no matter what time of day or night. We were would rather hear about a non-issue then never hear about a real problem….let us make the determination. That is how we serve you. Again, silence helps nobody.
If there is a problem or possible medical error, I want you to remain committed to our relationship. Please come back to me and my staff. It’s OK to be angry and upset, but please come back to me and my office to see if we can fix your problems or address any concerns. Again, silence or non-communication helps nobody.
This is our partnership, this is our pact. We will work together through good and bad with the permanent goal of improving your health. Let’s be teammates.
Signed Doctor X and Patient Y.”
How that’s for a patient accountability document? I think such a document is credible, believable, and a potentially great way to kick off a relationship with a patient and family. There is nothing threatening, offensive or intimidating in there….just lots of encouraging stuff that are actually very beneficial to relationship building. Remember, lack of relationships as well as breakdown of relationships are the top reasons docs get sued!! I would encourage physicians to spend five minutes reading and reviewing this document with every new patient and family, and get people to sign it. Give us your comments and feedback!
Finally, there is still time to register for our Sorry Works! Training class on March 22nd in Los Angeles hosted by the Hospital Association of Southern California. Here is the registration link: http://guest.cvent.com/d/cdqbwt .
Sincerely,
- Doug
Doug Wojcieszak, Founder
Sorry Works!
PO Box 531
Glen Carbon, IL 62034
618-559-8168 – direct dial
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Isn’t there an old saying: “You can’t contract away liablity?” It reminds me of the “suicide contracts” that many places have depressed patients sign before discharge that they “promise to contact someone if they have thoughts of harming themself.” It has been my experience that these have never held their weight in a court of law…now we are asking patients to essentially sign a paper that says: “I may screw up–and if I do–well…you signed the paper?”
Am I off-base here?
As an injury lawyer (and a big fan of Doug’s), I think Doug’s legal advice here is so bad that it needs a prompt correction in Doug’s next posting!
Arbitration agreements are strongly favored by the law!
The arbitration clauses that credit-card companies have been sending out in their fine-print “notice” mailings over the past decade or so are almost always binding … and there’s little likelihood that the cardholders ever actually realize that that’s what they are! They certainly aren’t signed, and are very unlikely to be acceptable to the cardholders, but they are a condition of using the card and they are binding. The same is true with mandatory arbitration of claims against stockbrokers – it’s extremely rare that such a claim, if filed as a lawsuit, survives as opposed to being kicked into the NASD arbitration system (even though it’s one of the most biased forums known to humankind).
Injury disclaimers are also binding in many circumstances. Generations ago, the fine print on the back of a rail or ski ticket was always enforced against the customer. That has eroded somewhat, but a clause in a doctor’s office’s consent-to-treatment agreement, such as Doug refers to, is very likely to be enforceable against the patient because it is actually signed by the patient, not just boilerplate on a slip of paper that nobody customarily even reads.
Again, state laws vary. State arbitration statutes are up to the legislatures, and arbitration precedent cases in state court depend on the state’s judges, just as malpractice laws, rights and limits vary from state to state. And new issues like this do indeed take a number of years to work their way through the courts until a consistent body of precedent builds up. Yes, it’s also basically true everywhere that whenever a clause violates some clear government interest or legal standard (such as a contractual promise to commit a crime for hire, or a contractual obligation not to sell your house to a minority-race person, or even a contractual immunity clause waiving liability for intentional injuries or “gross negligence”), then that clause is deemed void.
But it’s still just not true – and potentially dangerously misleading – to say that an arbitration clause is not legally valid, just because it’s unprofessional and unfair! The same is true of a general-liability waiver (ordinary carelessness/negligence), which is the foundation of malpractice-claim rights. If someone chooses to agrees to waive their right to sue rather than arbitrate, in exchange for getting specific medical care, it’s usually binding.
As a lawyer, I think it’s horrible. So it’s very important that folks know it’s out there!