A Possible Strategy for Fending Off Surprise Medical Bills
“We have never had trouble enforcing the terms of our original policy,” she said.
Still, some legal scholars question the premise that hospitals’ financial consent forms are themselves valid contracts. That’s because contract law requires “mutual assent,” which Barak Richman, who studies contract law and teaches at Duke University Law School, said patients can’t really give because they are seldom told the true price of care upfront, before signing.
“There’s something deeply exploitive about the process,” Mr. Richman said.
Still, he noted that judges often “are far too deferential to these contracts” when disputed balance bills end up in court, especially the vague wording that patients “promise to pay all charges.”
If patients alter the wording with their own terms — so long as they agree to pay what is considered a reasonable amount — then judges may also look to that added language, said Mr. Richman.
“This is not crazy by any means,” he said. “To the degree that courts rely on specific language of the admission contract, then this should be a successful strategy.”
But it isn’t easy to speak up, particularly in emergencies, which are already fraught.
“I believe it would be legally effective,” said Mark Hall, a professor of law and public health at Wake Forest University. “However, it requires patients to be much more astute and well prepared than is typical in most surprise billing situations.”
Ms. Richter said she had to endure some “toe-tapping” by an impatient administrator when she insisted on a paper copy of the consent form, rather than signing on the computer pad offered.
As it turned out, there was no additional bill for her husband, who gets his insurance through his job. The couple doesn’t know if that’s because everyone who saw him was in-network, or if it was her proactive stance on the forms.