Can a patient sign away their rights to sue you in the future for a case that will be performed in the future?
Let’s go down memory lane. Back to 1963.
Tunkl v. Regents of the University of California.
The University of California at Los Angeles Medical Center admitted Tunkl as a patient on June 11, 1956. According to the Regents (the named defendants), they maintain the hospital for the primary purpose of aiding and developing a program of research and education in the field of medicine; patients are selected and admitted if the study and treatment of their condition would tend to achieve these purposes.
Upon his entry to the hospital, Tunkl signed a document setting forth certain ‘Conditions of Admission.’ The crucial condition number six reads as follows: ‘RELEASE: The hospital is a nonprofit, charitable institution. In consideration of the hospital and allied services to be rendered and the rates charged therefor, the patient or his legal representative agrees to and hereby releases The Regents of the University of California, and the hospital from any and all liability for the negligent or wrongful acts or omissions of its employees, if the hospital has used due care in selecting its employees.’
Hugo Tunkl died.
Plaintiff stipulated that the hospital had Selected its employees with due care. The trial court ordered that the issue of the validity of the exculpatory clause be first submitted to the jury and that, if the jury found that the provision did not bind plaintiff, a second jury try the issue of alleged malpractice. When, on the preliminary issue, the jury returned a verdict sustaining the validity of the executed release, the court entered judgment in favor of the Regents.
So, the hospital won the first round. Interestingly, the patient argued at the time of signing the release he was in great pain, under sedation. and probably unable to read. At trial plaintiff contended that the release was invalid, asserting that a release does not bind the releasor if at the time of its execution he suffered from so weak a mental condition that he was unable to comprehend the effect of his act. The jury, however, found against plaintiff on this issue. Since the verdict of the jury established that plaintiff either knew or should have known the significance of the release, this appeal raises the sole question of whether the release can stand as a matter of law. As stated, the hospital won the first round.
The clause the hospital was trying to enforce was “an exculpatory clause.”
In the context of a hospital patient, the California Supreme Court provided insight into when a waiver might be deemed unenforceable due to involvement of “public interest”. The court identified six characteristics of a service that, if present, could render a waiver unenforceable. These are:
- The business provides a service of great importance to the public, akin to a public utility.
- The service is generally open to any member of the public who seeks it.
- The business holds a decisive advantage in bargaining strength, allowing it to dictate terms without negotiation.
- The contract is standardized and offered on a “take-it-or-leave-it” basis, with no opportunity for the customer to pay additional fees for protection against negligence.
- The customers are placed under the control of the business, subjecting them to potential harm.
- The waiver absolves the business of its duty to exercise reasonable care, which is generally expected in the context of the service provided.
The California Supreme Court applied these factors to the specific case.
In the light of the decisions, we think that the hospital-patient contract clearly falls within the category of agreements affecting the public interest. To meet that test, the agreement need only fulfill some of the characteristics above outlined; here, the relationship fulfills all of them. Thus the contract of exculpation involves an institution suitable for, and a subject of, public regulation. (See Health & Saf.Code, ss 1400-1421, 32000-32508.) That the services of the hospital to those members of the public who are in special need of the particular skill of its staff and facilities constitute a practical and crucial necessity is hardly open to question.
The hospital, likewise, holds itself out as willing to perform its services for those members of the public who qualify for its research and training facilities. While it is true that the hospital is selective as to the patients it will accept, such selectivity does not negate its public aspect or the public interest in it. The hospital is selective only in the sense that it accepts from the public at large certain types of cases which qualify for the research and training in which it specializes. But the hospital does hold itself out to the public as an institution which performs such services for those members of the public who can qualify for them.
In insisting that the patient accept the provision of waiver in the contract, the hospital certainly exercises a decisive advantage in bargaining. The would-be patient is in no position to reject the proffered agreement, to bargain with the hospital, or in lieu of agreement to find another hospital. The admission room of a hospital contains no bargaining table where, as in a private business transaction, the parties can debate the terms of their contract. As a result, we cannot but conclude that the instant agreement manifested the characteristics of the so-called adhesion contract. Finally, when the patient signed the contract, he completely placed himself in the control of the hospital; he subjected himself to the risk of its carelessness.
So, related to future care, a patient cannot really sign away their rights to some remedy if injured. At least in California.
Well, what if you agree to perform a revision procedure where you waive your professional fee in exchange for a release from liability for the original case, the case that triggered the need for a revision? Well, that’s different. Here, the original procedure has already been performed. The patient should be fully informed of any risk that was incurred. And a remedy HAS been offered; namely, a free revision procedure. That does not contradict Tunkl.
So, if you are going to offer such a free revision, get a release related to the original procedure. And get that release before you perform the revision. You will not be released from liability related to the future revision procedure. But you will be released from liability for the original procedure. “If you give, you must get.”
What do you think?
I still struggle with the intent portion of “intent to cause harm”.
That usually doesn’t apply in malpractice cases.
It may in some. Most physicians do not wake up and declare, “I will cause harm today”.
Also, patients seem to think that they are protected against all bad outcomes, (and apparently so does the state of California). But the physicians are not omniscient. Bad outcomes do happen regardless of the skill of the physician.
Additionally, there have been studies showing that in two similar cases, with similar outcomes, the very fact that there is a malpractice case changes the perception of how good or deficient the care was, that was performed.
This then comes back to the question of what a physician would do, if he knew in advance that he was going to be sued.
We have seen numerous examples of physicians punting on high risk patients, and sending them to other facilities, simply because of the risks. In many cases those “other facilities” are teaching hospitals. Those tertiary hospitals often do not have the choice about whether to treat or not, as in this case.
That then raises the question as to whether these tertiary facilities do have the right to turn such cases down, and declare that they are too high risk. If that is the case, then only good risk patients are treated.
I was aware of an orthopedic surgeon that turned down patients for hip replacement, or knee replacement, because they were overweight. The surgeon would force patients to wait until they lost a targeted amount of weight which might take years or never happen. As long as the patient had a bad joint they could not fully engage in exercise to lose weight.
Only one orthopedic surgeon in the area accepted all of those patients, did the required surgery, and had good outcomes.
Was that discrimination? Poor judgement on the part of the rejecting surgeon, or simply trying to make his numbers look better by only taking on great risk patients. In some cases even after the patient lost the requested amount of weight, the surgeon then insisted on a new target for additional weight loss. Several bariatric surgery programs were similar. Force the patient to lose a certain amount before they would be accepted for surgery. One person I know never had the surgery because of these parameters. That patient now remains house bound, because she has become so deconditioned. The surgeon maintained his reputation. The patient became progressively more debilitated. BUT what would have happened if the patient had the surgery and had a poor outcome knowing the risks? The same thing that would have happened if the patient did not have the surgery. Only in the latter case, death occurred later, and the patient and family have to endure a low slow lingering existence until death.
Everyone dies. It seems peculiar to our society that we think death can be put off indefinitely and therefore, if a tort occurs, we can sue for lottery stakes results.
In other societies death is accepted as inevitable.
We seem to have devolved to a state where only perfect results are accepted, and anything else is dealt with, with a lawsuit.
What a sad state of affairs.
We have a family friend, who despite having had a double mastectomy for cancer STILL uses tobacco. She left the cigarettes for 6 months, because the orthopedic surgeon refused to operate her knee unless she halted. She has other joint problems, even though she is not obese.
I am reasonably confident many of her complaints are due to loss of joint circulation, especially in the lower extremities.
If she had asked me for a lower extremity surgery when I was a surgeon, I would have refused.
Delayed wound healing for patients who use tobacco is well documented in the literature. She is an intelligent woman and we are friends. I have made some “comments” to her in the past, but generally leave the topic alone.
If I were still a surgeon, I would not operate people of high risk who have a “choice.” Doctors who read Medical Justice need to learn how to say no.
Michael M. Rosenblatt, DPM
Hugo Tunkl died.
Did he die from malpractice? Neglect? Starvation? Poisoning? Intentional harm? This article fails to enlighten us. As the above “retired” reminds us, “everyone dies.” I’m retired, too, and I’ll second that: no matter how special we are, God isn’t going to make an exception to that rule for any of us.
Or, for that matter, for any of our patients.
Assuming that at least the usual care was used in taking care of Hugo, the hold harmless agreement would only prevent the hospital or the Regents sustaining the cost of defending themselves, regardless of the likelihood of the plaintiff prevailing. Once clearing that hurdle, countersuits for breach of contract and frivolous suit would be in order. Against both the plaintiff and the plaintiff’s attorneys.
I think that refusing a pt for the first time for very good reasons is a hard decision. But, it will result
in preventing the possibility of a whole lot of grief for a surgeon. And, once a doc becomes used to saying no to these ultra high risk pts, it becomes easier to say no.
I agree with Dr Mike and “retired” as articulated above.
Sleep well colleagues. Treat yourself at least as well as you treat your pts. Your health comes first.
Richard B Willner
The Center for Peer Review Justice
http://www.PeerReviewJustice.org