How much do you have to lose before it's not frivolous?

Patients asked to sign contracts: company offers plans to curb frivolous lawsuits
May 1, 2004
by Jennifer Silverman


International Medical News Group
Gale Group

Click HERE for original article.

Patients asked to sign contracts: company offers plans to curb frivolous lawsuits
OB/GYN News, May 1, 2004 by Jennifer Silverman

Physicians across the country are taking a new aggressive stance to protect themselves against malpractice lawsuits: They're asking their patients to sign on the dotted line, specifying that they won't sue for any "frivolous" reason.

If it is a meritorious case, the patient "has to use a board-certified expert witness who follows the code of ethics for that particular professional society," said Dr. Jeff Segal, a nonpracticing neurosurgeon and founder of Medical Justice Corp., a company based in Greensboro, S.C., that provides these types of contracts as well as services designed to keep physicians from getting sued for so-called frivolous reasons.

In Dr. Segal's view, the term "frivolous" means the expert testimony against the physician was not compatible with what would be delivered by a majority of specialists, or at least a respectable minority.

In one example of a frivolous case, a urologist performed a vasectomy, performed postoperative semen counts at 1 week and at 1 month, and 1 year later got sued because the patient's wife became pregnant. "As it turns out, it wasn't his baby. I think that's a frivolous case," said Dr. Segal, who himself was sued while he practiced medicine.

Medical malpractice insurance pays for defending against a lawsuit and for the payment of a settlement or judgment. In contrast, Medical Justice plans are designed to help deter frivolous lawsuits and provide purchasers with assistance if they are sued. Also, Medical Justice will assist plan owners should they choose to countersue.

About 500 physicians from various specialties in 30 states have purchased plans from Medical Justice. It has grown most dramatically in the last several months, said Dr. Segal, whose clients pay from $625 to $1,800 a year, depending on the specialty's level of risk, for a plan. A neurosurgeon, for example, is going to pay a higher fee than a family doctor, he said.

These physicians' patients are asked to sign a contract that contains the clauses on lawsuits along with other standard provisions.

The language in the agreement is reciprocal, meaning that the physician agrees to the same stipulations as the patient. "Each side must use a board-certified expert witness in the same or similar specialty, who follows code of ethics for that specialty society," Dr. Segal said.

If a malpractice complaint is raised, "we send a letter to plaintiff's counsel telling them who we are, in the hopes that [the letter] will be enough to make a frivolous case go away," Dr. Segal said. If it doesn't, the next step is to examine the expert testimony on the plaintiff's side.

"Expert witnesses can make or break a case. We have our own panel of experts to determine whether there's a lie or hyperbole in expert testimony." If the expert's testimony is deemed fraudulent, the expert is reported to his or her professional society.

The society can make its own judgment of that expert witness, Dr. Segal said. In some cases, the expert can be expelled if the case is made that their testimony was tainted or untrue.

Dr. Compton Girdharry, an ob.gyn. in Alliance, Ohio, who retired in 2003, bought a plan from Medical Justice after his malpractice insurer went out of business and he couldn't afford the $250,000 tail coverage that would have covered him for an additional year. Medical Justice will offer assistance to him in any lawsuits that may come up from the time he was a practicing physician.

"The majority of suits in my profession are frivolous in my opinion," said Dr. Girdharry in an interview. He was involved in 10 lawsuits during his career. While most were either settled or dropped, two went to jury trial, including one he called "totally frivolous."

The patient had sued Dr. Girdharry, the anesthesiologist, and the hospital for experiencing pain during a repeat C-section and tubal ligation. "We stopped the procedure when she said she was in pain, and the anesthesiologist gave her some nitrous oxide so we could finish the procedure." According to Dr. Girdharry, the patient was fine for the rest of operation, and records showed no signs of complications.

To him, it made sense to call Medical Justice, even though he won both of the two jury trials in which he had been involved. Even as the winner, "I'd still seek compensation from the other party, because it costs money to defend myself."

Dr. Girdharry may go back into practice part-time for a federal clinic that's offering him malpractice insurance. In the meantime, he's keeping his insurance with Medical Justice, which in his opinion has already paid for itself. "We're living in a time when people have a higher expectation from physicians--that until proven otherwise, it's the doctor's fault."

Medical Justice is only 2 years old, yet, it's already had an impact, Dr. Segal said. A study conducted by SG Risk, an actuarial firm based in New Jersey, estimated that Medical Justice clients have a 2% chance of being sued per year.



Not everyone agrees with this concept. Joanne Doroshow, executive director of the nonprofit Center for Justice & Democracy in New York, argues that malpractice cases by their own merit are rarely frivolous, mainly because it's so expensive to line up the experts and develop the case. One of the obvious problems is that no doctor ever believes a lawsuit against him is anything less than frivolous, Ms. Doroshow said.

Kathy Olsen, of San Diego County, Calif., whose teenage son suffered permanent blindness as a result of an untreated cranial abscess, said she was "appalled" that insurance such as that offered by Medical Justice even exists. "How much do you have to lose before it's not frivolous?" Mrs. Olsen said. "As parents, we are assuming that physicians are going to take care of us."

Mrs. Olsen said the physicians treating her then-2-year-old son had written down "cranial abscess" as a possible reason for his symptoms, but never informed her of this possibility. "Instead, they told us he had some form of meningitis, and didn't scan him." As a result, the abscess herniated his brain and he had to spend 5 months in the hospital. "The physicians involved in his care should have done something about it and reported back to our pediatrician. A brain abscess, if detected in time, can be removed," said Mrs. Olsen, who won her case in court.

To Barry Furrow, director of the Health Law Institute at Widener University School of Law in Wilmington. Del., Medical Justice's approaches "are just scare tactics." In an interview, Mr. Furrow said he doubted that the courts would be very sympathetic to such vague agreements. "It is also not clear that a pure waiver of liability, as Florida doctors are now demanding, would hold up in state courts. But this is a highly politicized issue, and judges have sometimes been fooled by the arguments."

The board-certified expert witness requirement is an odd idea, he continued. "I've been an expert in several cases, and I certainly have no board certification. I think, however, that some medical societies are beginning to use this idea of certifying experts, as a way of scaring away doctors from testifying."

Dr. Segal says 99% of patients have signed the contracts provided by Medical Justice clients. "Most people believe that they wouldn't sue for a frivolous reason anyway."

Arrangements of this type do exist elsewhere, Arthur Levin, director of the Center for Medical Consumers in New York, said in an interview. Kaiser Permanente, for example, "requires enrollees to sign a 'willingness to arbitrate' agreement. That's one example where a health plan is saying it would rather resolve through arbitration than go through the courts."

In addition, some states have procedures that require some sort of affidavit from a medical expert that a case has merit, he said.

What Mr. Levin finds disturbing about Medical Justice is that a very ill person could walk into a physician's office, refuse to sign the consent form, and not get treated. "There's something very off-putting about telling patients that you won't treat them unless they sign an agreement."

No one is happy that physicians are paying for such high malpractice premiums, Mr. Levin said. "Does it unfairly punish physicians? Yes. However, the answer to the medical liability crisis isn't to create an atmosphere where the physician will only take care of sick people if they agree to his or her terms. It doesn't speak well to the profession."

Ms. Doroshow said it's unfair to force a patient who has no legal or medical training to sign this type of form. "It's intimidating, because they don't understand what kind of sanctions can be brought against them. It also hurts the doctor-patient relationship. Only the legal system and courts can decide if something is frivolous. That's what it's there for."

BY JENNIFER SILVERMAN

Associate Editor, Practice Trends