Q: I practice in a high-risk specialty. I think it is safe to say that I and other physicians who practice this specialty face more than our share of malpractice claims. At a seminar I recently attended a company was selling a “program” they say will protect me against malpractice claims. The program materials include a release and waiver contract that I would have patients sign. This contract provides that the patient will never sue me for malpractice in consideration for my agreement to provide my services. Does this approach work? Why have we not always done this to avoid malpractice claims?
The patient then received radiation therapy at Beaumont Hospital. He later sought treatment for back pain and a post radiation ulcer burn was discovered in the area where he received radiation therapy. A short time later the patient died. The patient’s estate sued alleging Beaumont Hospital negligently provided the radiation therapy and that this negligence contributed to the patient’s death. The trial court dismissed the case ruling the agreement signed by the patient prior to receiving the radiation therapy precluded the patient’s estate from pursuing this malpractice case.
The Court of Appeals reversed. In doing so it looked to other states that have considered whether a patient’s waiver future malpractice claims is enforceable. Courts in the majority of other states have held such waiver of agreements invalid and unenforceable when:
(i) the subject of the agreement is a business of a type generally thought suitable for public regulation;
(ii) the party seeking the waiver is engaged in performing a service of great importance to the public which is often a matter of practical necessity for some members of the public;
(iii) the party seeking the waiver holds himself/herself out as willingly to perform the service for any member of the public who seeks it; and (iv) the party seeking the waiver has superior bargaining power.
The Court of Appeals found that all these factors were present. Clearly, hospitals and medical professionals are subject to extensive public regulation. The providing of medical services is of great importance to the public and a matter of practical necessity for patients. Physicians hold themselves out to the public as willing to provide their services to the public at large. Patients who are ill and in need of diagnosis and treatment have less bargaining power than the physicians from whom they are seeking care.
The Cudnick case stands as binding precedent that, if challenged in court, would make invalid and unenforceable agreements seeking an advanced waiver of suits, claims, liability, demands, etc arising from medical services.
The Court of Appeals was careful in its opinion to state that its ruling should not be construed as rendering invalid and unenforceable releases executed after the initiation of a malpractice lawsuit pursuant to a settlement for due consideration will be valid and enforceable (and routinely are).
Daniel J. Schulte, JD, MSMS Legal Counsel is a member and managing partner of Kerr Russell.
