Unreliable testimony propels many cases
The NEACP report is an important, peer-reviewed document, and although it could be labeled as self-serving, it does provide a road map for documenting, with evidence, how intrapartum events can indeed cause CP.
It can be argued that CP lawsuits unsupported by any of the NEACP criteria do not belong in court.
Frivolous cases often proceed with frivolous expert testimony, which can be defined as testimony that a majority or respectable minority in the field would not utter. Put a different way, if the expert is the only person holding a particular view, that unique opinion probably does not define the standard of care.
There are remedies available to physicians worried about frivolous lawsuits. The most effective strategy, we believe, is to be proactive: Have the patient sign a contract well before delivery in which she agrees not to sue indiscriminately in certain circumstances. Such a contract can include language requiring the patient to follow reasonable procedural guidelines if she does decide to sue.
If handled correctly, contract law can protect physicians. A reasonable contract does not ask the patient to forego all legal remedies; it does leave her with recourse in the event of negligence. Having a patient sign a blanket release would be considered an “abuse of power,” and the courts would probably dismiss such an agreement.
An enforceable contract has to withstand legal challenges. The contracts used by Medical Justice Services, the organization we established to protect physicians from frivolous lawsuits, define the expectations regarding resolution of concerns. For example, the patient agrees that the physician cannot be sued for a frivolous reason. It does not bar litigation for any reason—just for a frivolous reason. Should a legitimate dispute arise, both the patient and physician agree to use experts who are members of, and follow the code of ethics of, the physician’s professional specialty society—in this case, ACOG. The goal is to ensure that experts are reputable and accountable.
Breach of contract should also be defined in the document. For example, in obstetric and gynecologic cases, a conclusion by the ACOG ethics committee that court testimony is “frivolous” might be listed in the contract as a determinant of breach. Definitions and rules of procedure are often embedded in contracts.
Will such a contract hold up?
An unenforceable contract is described as “unconscionable.” In a recent legal case,3 the court determined: “To be unconscionable, ‘the contract must be such as no sensible man not under delusion, duress, or in distress would make, and such as no honest and fair man would accept.’”
The 2 provisions of the Medical Justice agreement—the promise not to bring a frivolous lawsuit and the mutual promise to use an expert in the same specialty who follows the code of ethics of his or her specialty society—would probably not be considered unconscionable. The first promise is already the law in every state and is reflected in numerous statutes; when addressed in a contract, such a statute is easier to enforce. The second promise focuses on the procedures for advancing a legitimate case.
As a reputable treatise on contract law points out, “There is a growing tendency for courts to uphold the right of parties to prescribe certain rules of evidence should a lawsuit arise out of the bargain between them, so long as it does not unduly interfere with the inherent power and right of the court to consider relevant evidence.”4 Therefore, those who sign contracts have some latitude to determine, in advance, how procedures might vary from general courtroom standards.
It is well established that patients and physicians can contract to use arbitration. Arbitration asks the plaintiff to forego her right to trial by jury in the presence of a judge. Imposing reasonable conditions for the use of expert witnesses is clearly less restrictive than requiring arbitration.
In 2 recent cases,2,5 the courts relied on several factors to determine that the contracts in question were not unconscionable:
- Contractual provisions weren’t hidden but were instead highlighted, and the contract was otherwise easy to read and understand
- The patient had the opportunity to read the contract fully and ask questions
- There was no effect on the physician’s duty to provide reasonable care
- The contract did not limit the liability of the provider to the patient.
What if the infant becomes the plaintiff?
An important question in obstetric-related lawsuits is whether the child is bound by the terms of a contract signed by the mother. Falling back on the arbitration analogy, there are ways to hold individuals who haven’t physically signed the contract—including a minor child and any attorney the patient hires—to the terms it spells out. A child can be bound by the mother in an agreement to arbitrate entered into during the prenatal period. In one case, a court interpreted the arbitration clause to apply to any claim arising from services under the agreement, even though the plaintiff had not been born when the agreement was signed.6 This case is of particular interest to ObGyns because it established a precedent that limits the right of children to sue even though they themselves never signed the agreement.