CONTRACTS SIGNED UNDER DURESS OR COERCION ARE NOT ENFORCEABLE – UNLESS THEY CONTAIN NO EVIDENCE OF EITHER THREAT OR COERCION!
Earlier this year a relatively ill advised physician in California permitted his office personnel to administer a nasty little contract agreement to his new patients, that is if he even knew about the paper work they were handing out to all new patients. Many times physicians foolishly allow business managers to process whatever paperwork they feel appropriate and are completely in the dark.
Excerpts from an article found on jeffereyjaxen.com/blog titled Doctor’s Refusing Care Unless Patients Sign “Immunization Contract” Forcing Full Schedule of Shots
It was a day like any other at the Carmichael, California practice of Matthew T. Cohan, MD. A father entered the waiting room with his daughter by his side. The daughter — a new patient — was experiencing upper respiratory congestion. Before she could be seen, standard new patient paperwork needed to be filled out. However, on the final page of this paperwork, the office required new documentation to be complete before the patient could be seen.
Here is Dr. Cohan’s Immunization Contract:
As the father was seeking medical attention for his sick daughter, it is unlikely the physician would have vaccinated the girl during that visit anyway. However, by demanding this agreement be signed PRIOR to the child seeing the doctor, it could easily be seen as a denial of care. Unfortunately there is no indication on the contract that the child was even ill.
So, why would a pediatrician deny care to a child whose parent prefers not to vaccinate per the CDC schedule, outside of the fact he is grossly ignorant of the nature of the CDC itself?
Was it the carrot or the stick?
In the case of this physician it could be BOTH the carrot and the stick.
According to Blue Care Network, a medical provider could receive $225 per service achieved in the category of “childhood immunization – combo 2”. There is an additional bonus of $125 if the service falls under the “Well-Child visit”. The Well-Child visit is nothing more than a Center’s for Disease Control and Prevention created and sponsored vaccine tracking session. The provider-initiated appointment is to track each child’s immunization status which is then transferred — typically outside of the parent’s awareness and consent — to the home state’s individual immunization tracking system.
As the public health departments in most states are now using electronic medical records to track physician compliance, if Dr. Cohen permitted too many parents to deviate from the CDC schedule of vaccinations, he could be called on the carpet and made to account for his poor ‘performance’. At some point in the future the public health people could then report him to the state medical licensure board for disciplinary action.
What about the contract?
As this agreement appears, there is no evidence of exigent circumstances – such as the fact the daughter was ill. Nor does the document state that the parent will be provided with the package insert prior to each injection. Should the parent ask and receive the package insert (full disclosure) prior to permitting the daughter be vaccinated, the contract has no opt out provision if the parent thinks that the risks of the vaccine outweigh the supposed benefits. Also missing is the real elephant in the room . . . neither the physician, his staff, the CDC, nor the vaccine manufacturer have any liability should the vaccine make the child permanently disabled or even dead!
According to the National Childhood Vaccine Injury Act (1986) this pediatrician is obligated to provide information regarding the risks (and there are many) and benefits of each vaccine to the parent before administering it. This was intended to allow the parent to make an informed decision as to whether or not his/her son or daughter would be vaccinated. On its face this contract supersedes the informed consent legal requirement and thus is in violation of it.
This document is a perfect example of a presumptive adhesion contract. The presumption is that the parent is fully aware of the above issues and accepts the physician’s terms for denial of service. Mitigating circumstances such as the daughter’s illness are no where on the contract. So, unless the parent makes a notation such as “under duress” the daughter’s condition will not be a consideration in the future relationship between the physician and the parent.
The adhesion is that either the parent agrees to inflict the CDC recommended vaccines (and schedule) on their child or the physician will deny the child medical care . . . no matter what the child’s condition.
BAR attorneys have made adhesion contracts commonplace in today’s world. They can be thought of as ‘take it or leave it’ deals with no room for the weaker party – in this case the parent – to negotiate more favorable terms.
While most people think that healthcare is not a commercial enterprise, the mountain of documents we are all asked to sign before being seen at a medical facility proves them wrong.
The father was requested to sign as the “Parent/Guardian”, which is a legal UCC term, as is “Patient”. Therefore this is a UCC contract, which is above both Constitutional and Common law because the father consented to its terms with his signature.
What else could the father have done?
The easiest way for an informed father to have handled this situation would have been to draw a line through the term “Patient” and write in “daughter”, draw a line through the term “Parent/Guardian” and write in “father” and write “without prejudice [UCC 1-308]” above his signature. If the physician’s office refused the father’s counter offer, he should then have left and taken his daughter to an urgent care facility or emergency room.
By correcting his and his daughter’s legal character and restricting his signature, the father would have taken this unconscionable contract out of maritime jurisdiction (UCC) and placed it into common law jurisdiction. In common law jurisdiction the contract would not be enforceable unless both parties reached a mutually informed agreement. Common law contracts with undisclosed terms are not enforceable.
This unfortunate scenario clearly exposes the fact that BAR attorneys create entrapment contracts (presumptive adhesion contracts) all of the time with the intention of inflicting them on unsuspecting men and women. At the same time, the BAR has done little or nothing to educate the public on the basics of contracts or commerce. They prefer to profit from our ignorance. And, judges take the position that “ignorance of the law is no excuse”, leaving Americans without a paddle on a vast lake of legal mumbo jumbo.
For attorneys and those that wish to better understand the enormous problems that presumptive adhesion contracts create, please read this wonderful essay that appeared in the Louisiana Law Review in 1974 a few years after the UCC (statutory law) had been adopted in the states. http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=4016&context=lalrev