Express & Implied Contracts from a Physician:
When a patient begins treatment under a health care professional, he or she forms a contract between him or herself and the medical professional. The contract formed therein is legally binding and is condition subsequent in nature – the health care professional will perform a service, resulting in payment from the patient for services rendered. The terms of this contract may vary depending upon the agreement, and generally may be either express or implied. Express contracts between the physician and patient are enumerated and specified by date, while implied contracts are looser in construction and often left up to the physician’s discretion.
Physicians in Institutions:
A physician practicing in a medical institution such as a hospital or office shares malpractice liability with him or herself and the facility in which he or she practices. Physicians in institutions are covered under their own private medical malpractice insurance, and also answer to the board of trustees through the hospital director or administrator. The representatives and owners of the hospital as a collective are also responsible for the physicians which work in their institutions.
Specific Promises of Cure:
Medical laws regarding doctor patient contracts have changed over the years dating back to the nineteenth century when medical malpractice suits became regulated by local courts. Generally, courts look to the historic Hippocratic Oath when regulating medical laws with regard to ethics. While seeking to define a clearer picture of medical laws and the legal duty of doctors to their patients, the issue of specific promises of cure is inevitably addressed by courts. Specific promises of cure refer to the contracts between doctors and patients for the legal duty of the doctor. A specific promise of cure is when a doctor legally obligates himself or herself to cure a patient’s ailments by express or implied contract.
An exculpatory clause comes from the latin “culpa” which means fault or blame. It is thus that an exculpatory clause is present in an agreement in order to absolve a party from blame. In personal injury law, when an exculpatory clause is signed, the ability to sue for negligence or medical malpractice is limited. There is no federal law which regulates exculpatory clauses in personal injury law – this is left up to the jurisdiction of the state appellate court. The highest state courts regulate the validity of an exculpatory clause. It is thus that an exculpatory clause is seen generally as a safety measure for medical institutions in terms of medical malpractice and liability.