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Many health care providers are requiring patients to sign lengthy agreements absolving them from liability for malpractice as a condition of treatment. A typical scenario is a family needs to put a loved one in a nursing home. A family member visits the facility on behalf of the relative. They are given the sales pitch and tour by the sales staff; promises abound. Then they are given a stack of “standard admission documents” to sign. Within the stack are contracts the nursing home drafted to limit or take away the rights of the nursing home resident. Some of the agreements purport to limit liability, some try to take away the constitutional right to trial by jury, or both.

Now physicians are trying to get on the bandwagon and attempt to require patients to sign documents preventing them from being compensated even in cases of obvious medical malpractice. As recently noted in the Tampa Tribune:

The practice is a form of blackmail: Sign it or get out. Equality of bargaining position does not exist between a doctor and patient. There’s no neutrality and no opportunity to negotiate the terms of the agreement. Mandatory arbitration may be appropriate in the context of a business relationship, but it is inappropriate in the context of health care decision-making.

What most people do not understand is that the vast majority of malpractice is committed by a small number of physicians. Usually these are greedy types who operate to make money not to help others. These are the business men in the white coats and, sadly, they are precisely the ones most likely to take advantage of patients and sneak limitations on liability into the patient agreements. Most physicians are responsible and smart. They are rarely sued numerous times and if they happen to make a medical error that hurts or kills someone they have purchased insurance to protect them and to help out the patient for the lifelong damages they caused. Sadly, however, malpractice insurers are now trying to get even the good doctors to force patients to sign these liability limits. In that event, the only one that is protected is the malpractice insurer. Of course, the patient must then resort to us taxpayers through social security, medicare or medicaid to pay for his future care and the malpractice insurer gets off scot free. By the way malpractice insurers have not reduced rates they charge physicians in return for patient liability waivers. To add insult to injury I recently represented a physician to protect him from his malpractice insurer. In that case the malpractice insurer snuck a clause in the malpractice insurance policy that tried to prevent the physician from suing the insurance company if the insurance company acted in bad faith toward the physician. Moral of the story: liability escape clauses only protect the unscrupulous and should be banned in medical care situations.

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