Patients as Consumers - Harvard Law School

MLR 106-4 Edit Format Document Hall Mich L Rev.doc
example, in 1777, at the dawn of contract law, a doctor treated a
patient for “a fashionable [venereal] disease” in return for a note
for ₤200. The doctor sued on the note while the patient was in
debtor’s prison. 194 According to a newspaper report, Lord Mansfield
instructed the jury “with hot indignation,” expressing “his
disapprobation of the doctor’s conduct”: 195
He lamented the situation of the defendant who had spent
his fortune and seemed to have been bullied into the
securities that were the object of contention. He observed
that men enervated by debauchery and vice wanted spirit to
prevent imposition; that the defendant seemed one of that
kind as the doctor’s conduct had induced him to sign the
draft and note of hand; that it was his duty and that of
the jury to rescue him if possible from destruction. 196
In modern cases, unconscionability has been most successful where
a third person, like a family member, 197 volunteers in an emergency to
pay an adult’s bills. 198 Yet the reasoning in those cases applies
excellently to cases in which patients themselves signed the contract.
A New Jersey court, for instance, declined to enforce a hospital
contract where the patient’s wife signed a standard form that didn’t
describe the hospital’s rates and was “conspicuously silent on the
question of balance billing.” 199 The form’s terms “were non-negotiable.
The hospital clearly exercised a decisive advantage in bargaining.” 200
the patient “had to agree to pay or forego necessary medical treatment”); see
also Morreim, supra note 9, at 1247–48; Nation, supra note 9, at 124–31.
194. Gazetteer & New Daily Advertiser, June 18, 1777, quoted in
Catherine Crawford, Patients’ Rights and the Law of Contract in Eighteenth-
Century England, 13 Soc. Hist. Med. 381, 406 (2000).
195. Id.
196. Id.
197. Under the “necessaries” doctrine, spouses may be responsible for
each other’s medical care and parents for the care of minor children. Jacoby
& Warren, supra note 8, at 567–68. The cases discussed here involve situations
where this doctrine was not dispositive.
198. In addition to the cases described in the following text, see
Phoenix Baptist Hospital & Medical Center, Inc. v. Aiken, 877 P.2d 1345, 1349–
50 (Ariz. Ct. App. 1994), which absolved a husband from paying for his wife’s
emergency care because he “signed the agreement under extremely stressful
circumstances without having had the terms of the agreement explained to
him,” and “he felt he had no choice but to immediately sign the preprinted
form,” and Heartland Health Systems, Inc. v. Chamberlin, 871 S.W.2d 8, 11
(Mo. Ct. App. 1993), which rejected an unconscionability defense, but stated
in dictum that, “[i]f a stranger brought an accident victim to the hospital,
and signed a document whose terms, unnoticed by him, obligated him to pay the
hospital bill, different considerations and different expectations would no
doubt come into play if the hospital sought to hold him liable for the
hospital bill.”
199. Valley Hosp. v. Kroll, 847 A.2d 636, 651 (N.J. Super. Ct. Law
Div. 2003).
200. Id.
U of M Law School Publications Center, November 2, 2007, 12:51 PM
Page 40