- The Washington Times - Monday, May 17, 2004

Some doctors are trying to discourage malpractice lawsuits by having patients sign waivers agreeing not to sue them, and growing numbers are charging fees designed to help them pay for the rocketing costs of malpractice insurance.

In Trinidad, Colo., Dr. Stanley H. Biber, 81, says he hasn’t performed general or orthopedic surgery for six months because he can’t afford to pay $149,000 a year in malpractice premiums. If he resumed another specialty, transsexual surgery, the premiums would cost at least $250,000 annually.

Therefore, Dr. Biber said he is considering having patients sign contracts agreeing not to sue him, so he can be insured and have “some protection.”

Dr. David Vastola, an intern in gastroenterology in North Palm Beach, Fla., says he began using waivers two years ago when his annual costs for malpractice premiums soared from $12,000 to $60,000 in one year, while his coverage plunged from $1 million to $250,000.

“So I added the waiver, and as a result of those contracts, patients agree not to sue me. … It makes sense, because here in Florida doctors can’t afford to stay in business anymore,” Dr. Vastola said.

He estimates he has seen as many as 10,000 patients since he required that they agree not to sue him. “All but one patient signed,” he said.

Michael Preston, executive director of MedChi, the Maryland state medical society, which represents 7,000 doctors in that state, said he doesn’t know any physician who requires waivers, but added: “We hear a lot of interest in the process of charging patients extra fees. … I’m sure physicians would be more aggressive in charging extras fees [for services that were once free] if they were not so worried” about legal issues that might be involved.

Some doctors are charging for telephone consultations and for completing disability or insurance forms. Here are some examples:

• A Rhode Island intern bills patients $2 a minute for phone consultations.

• Capitol Medical Group in Chevy Chase charges patients $15 for night or weekend calls if the pediatrician on duty thinks the call could have waited.

• A primary-care practice near Richmond charges $15 to $250 for completing insurance or disability paperwork, depending on the complexity.

Dr. Kenneth Greene, an intern in Towson, Md., said that he knows of some doctors who are charging patients $5 or $10 to renew prescriptions by phone.

Dr. Greene said he does not add extra charges, but he raised $3,000 last year in a mail solicitation program in which he requested $10 donations from patients to help offset rising malpractice costs. He continues to seek $10 contributions from patients who visit him, but stresses they are not required.

He said he has also heard of some interns and primary-care physicians in the Baltimore area who have required patients to sign contracts pledging they will not sue. “But it’s probably worthless to do that,” Dr. Greene said. MedChi agrees.

But Dr. Vastola said he believes his waiver agreement could survive a court challenge. “No one has to come to my office or sign it,” he said.

Mr. Preston said doctors’ costs are “soaring” as a result of both malpractice premiums and mandatory security and privacy rules imposed by the U.S. Health Insurance Portability and Accountability Act passed by Congress in 1998.

The May issue of the AARP Bulletin looked at the issue in a report that cited two Virginia women paying extra charges. Lila Tinkoff of Oak Hill said she didn’t mind when her doctor added $7 to her bill to help offset high malpractice rates.

A second woman, Margaret Huang of Arlington, who is pregnant, said she is concerned her doctor’s extra fees will start to mount as she undergoes more examinations in the final weeks before she gives birth.

“This is about recovery of lost income, rather than a revenue-making scheme,” Paul Kitchen, executive vice president of the Medical Society of Virginia, told the AARP Bulletin. His group represents 8,700 physicians.

“There is a lot of legal uncertainty [about imposing extra charges] with regard to Medicare patients and patients with commercial health plans, since their contracts often prohibit charging for anything but deductibles and co-pays,” Mr. Preston said.

Because of all the questions concerning this issue, the Office of Inspector General at the U.S. Department of Health and Human Services recently notified doctors that they could be fined or barred from Medicare and other federal programs if they violate those terms.

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