Patients asked to sign vow: no 'frivolous' suits

April 12, 2006

BY JIM RITTER Health Reporter

Sixteen doctors at a women's health clinic in the northwest suburbs have begun using an aggressive new tactic to fend off malpractice suits.

Patients at four WomanCare offices are being asked to sign a contract promising not to file "frivolous" malpractice suits.

Some patients have asked questions about the form, said WomanCare CEO Dr. Carl Cucco. "But no one has refused to sign," he said.

Anyone who does refuse still would be treated.

Cucco said the contract levels the playing field in malpractice litigation. "We want to play fairly, and most patients are very supportive."

Critic calls it intimidation

The patient contract is among the litigation defense tactics offered by a North Carolina company called Medical Justice Services. The company has signed up more than 1,300 doctors in 47 states.

Medical Justice CEO Dr. Jeffrey Segal said not all of his clients ask patients to sign the contract, although "more and more of them are using it."

Few patients object to the contract, Segal said. "Most see themselves as rational and reasonable and not the type of person who would file a frivolous claim."

But Joanne Doroshow of the consumer group Center for Justice and Democracy said the contract is an "unethical and egregious violation of patients' rights. The purpose is to intimidate a patient to not file a lawsuit if injured in malpractice."

Firm says contract is deterrent

Segal said that if a patient who signs the contract later files a frivolous lawsuit, the doctor could sue the patient and the patient's lawyer for breach of contract. To help a doctor pursue such countersuits, Medical Justice will pay up to $100,000 in legal fees.

Medical Justice also promises to finance countersuits on other legal grounds. Two such suits are under way in Ohio and Pennsylvania, and others are being considered.

Segal said the threat of being counter-sued will deter patients and attorneys from filing frivolous malpractice suits.

About 71 percent of malpractice claims eventually are dropped by patients or dismissed by the court, according to the Physicians Insurers Association of America. Segal said many such claims were frivolous to begin with.

But Doroshow contends that very few malpractice cases are frivolous. Malpractice lawsuits "are expensive and difficult," Doroshow said. "No attorney can afford to bring a frivolous case because they only get paid if they win."

'Meritorious' suits still allowed

The contract doesn't define "frivolous." But Segal said a doctor could use litigation guidelines from medical societies to determine whether a lawsuit was frivolous.

A patient who signs the contract still would be allowed to file a "meritorious" malpractice suit. However, the patient would agree to use only expert witnesses who are board-certified in the specialty of the doctor being sued.

In metropolitan Chicago, Medical Justice charges doctors annual fees of between $900 and $1,800, depending on the specialty The specialists most likely to be sued, such as neurosurgeons and OB-GYNs, pay the highest fees.

jritter@suntimes.com