Published by Vorzimer, Masserman & Ecoff
PROFESSIONAL LIABILITY: LAWSUITS HAVE PHYSICIANS, COUNSELORS AND AGENCIES ON THE DEFENSIVE
Professionals, such as physicians, attorneys, architects and counselors are not unaccustomed to lawsuits for professional negligence arising out of services rendered to a patient or client. Moreover, professionals have come to expect their share of frivolous lawsuits, filed as a prophylactic measure when a fee dispute is imminent or because an unethical attorney pounces upon the opportunity to extract a nuisance value settlement.
More problematic is the recent spate of lawsuits filed by participants to reproductive arrangements regardless of the professional's culpability. These cases have included:
· Suit against professionals as result of an insurer's failing to pay medical expenses
· Suit against professionals as result of an attempt by surrogate to change her mind
· Suit against professionals for alleged failure to disclose all risks
What is having a chilling effect is the needless inclusion of either doctors, lawyers, agencies and/or mental health professionals in lawsuits which are unrelated to the services actually rendered. Because of the liberal pleading requirements in most state courts and the ubiquitous nature of errors and omissions coverage (malpractice insurance), attorneys are using this shotgun approach to include as many defendants and causes of action they can possibly extract out of any situation. Much of the recent litigation can be avoided if A.R.T. professionals employ certain minimal and cost-efficient safeguards.
First and foremost, do not exceed the grasp of your expertise. Too frequently, physicians and psychologists are utilizing generic form contracts between themselves, their patients, donors and surrogates. Each arrangement requires individualized attention and counseling to ensure informed consent by all participants. Professionals to any reproductive arrangement must delegate responsibilities to others who are licensed and specialize in that field.
Second, professionals must ensure the total absence of any conflicts of interest. A physician or agency who employs a psychologist who represents all parties is creating an unnecessary risk where the loyalties of all parties and the motivation for subsequent conduct can be subject to scrutiny. An agency that prepares its own reproductive contracts; an attorney who matches clients with surrogates; or a psychologist/counselor who owns the agency, screens the surrogates and administers the agreement, all are potential defendants when a problem arises. Ensure the independence of each professional to any reproductive arrangement.
Third, distill everything to writing. Nothing can bring a lawsuit or threat of litigation to a screeching halt then a written document contradicting a damaging oral allegation. This necessarily includes written disclosures and waivers of all risks attendant with any reproductive contract.
Fourth, draft a set of protocols, akin to an employer's policy and procedure manual, to ensure that each problem, conflict or issue is addressed in a fair and consistent manner. Engage in continuous written follow-ups with your clients. Confirm in writing important discussions, meetings, test results, complaints and proposed solutions to problems. Promptly respond to calls or inquiries and confirm such follow-up in writing. Start a "tickler" or reminder procedure to ensure that your client/patient does not forget. Lastly, make sure your patients, clients, donors and surrogates have the benefit of independent counsel who explains the risks and ramifications of their conduct. Require that the independent attorney issue you a clearance letter, confirming the consult and his or her client's informed consent.
Return to Index of the Journal of Assisted Reproductive Law
Last Updated: October 13, 1997
(c) 1997 By Vorzimer, Masserman & Ecoff. All rights
reserved. No part of this publication may be used commercially or
reproduced without prior written permission of Vorzimer, Masserman &
Ecoff. The Journal is published as a service to the Assited Reproductive
Technology community. The articles are summaries of the law and are not
intended to be used in lieu of legal advice. The authors will, on request,
be pleased to discuss their articles in greater detail.
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