Nov 1, 2008
By: Karen Nash
Dermatology Times

Partnership

In New Port Richey, Fla., dermatologist Natalie Lama Monticciolo, D.O., F.A.O.C.D., signed on after her husband heard about the contract and started looking at a similar contract for dentists, who have also had problems with Web sites and blogs.

She says her patients completely understand.

"We made it part of our HIPAA agreement last spring, and I really haven't had anybody challenge it. They just take for granted that it's standard as part of the professional relationship.

"When they read the language, they think it's wonderful, because it describes it as more of a partnership, instead of just a walk-in clinic," Dr. Monticciolo says.

She says that even in her small town, billboards advertising malpractice lawsuits make it obvious that doctors have to be aware that patients may not always be satisfied.

"With the Internet, anybody can post anything they want, even if it's not true. Disgruntled employees or your competition can put up posts. What's to stop them? This is a great concept in that it protects the physician and the practice," Dr. Monticciolo says.

Questions to ask

In New York, Scott Einiger is a senior partner of New York City Health Law Practice at Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP. Mr. Einiger has extensive experience in all facets of healthcare law and represents a number of medical societies in New York state.

He couldn't offer an opinion on a contract he hasn't reviewed, but Mr. Einiger does suggest some questions doctors should ask when considering adopting this type of agreement for patients in their practice.

Because each state may be different, Mr. Einiger advises that legal research would be needed to determine whether it would be against public policy (i.e., a contract of adhesion and, therefore, unenforceable) to ask a patient to sign such an agreement.

Other suggested questions include:

• What types of damages are incorporated if a patient violates the agreement?
• What recourse would the doctor have under the contract?
• What, if any, consideration is provided to enable the doctor to enforce the agreement?

Mr. Einiger also says physicians need to ask themselves some questions:

• What if the patient doesn't want to sign?
• Do you want to run the risk of losing that patient?
• Would you refuse to treat the patient?

"You have to evaluate the risk and benefit. There are contracts that maybe aren't enforceable, but they can eliminate the possibility of a lawsuit being filed. Is it worthwhile to get an attorney and get involved in battling something like this?" Mr. Einiger says.

That doesn't mean Mr. Einiger is opposed to a program that can reduce frivolous allegations against physicians. He is familiar with Medical Justice.

"I like a lot of their philosophy. They don't get involved with matters that are meritorious, just frivolous situations. Anything we can do to dis-incentivize people from bringing frivolous actions is a good thing," he says.