Contractual revisions to medical malpractice liability.

In the past, courts have struck down or severely limited attempts by health care providers to use written contracts to reduce their liability for negligence, deeming such agreements to be contrary to public policy.' The basic reason is that courts have not traditionally viewed the relationship of patient and health care provider as a contractual one, freely entered by both parties. Rather, physicians and hospitals have been classified, like innkeepers, utilities, and common carriers, as entities to which individuals, with no real bargaining power, must resort out of necessity. Hence, courts have not really analyzed exculpatory patient/health care provider agreements in terms of mutuality of bargaining or "arm's-length" negotiation. Instead, courts have simply rejected them out of hand as contrary to the public interest. The decisions cite one or more of the following overlapping rationales: