Your Patient Intake Forms May Need a Checkup

by Ward and Smith, P.A.

On January 27, 2017, the North Carolina Supreme Court held that a physician and his practice could not enforce an arbitration agreement against a patient where the physician and his practice did not make full disclosure to the patient of the nature and import of the arbitration agreement before or at the time it was presented to the patient for signature.  

The case, King v. Bryant, involved patient Robert King, who was scheduled to undergo surgery by Dr. Michael Bryant for a hernia repair.  At his first appointment with Dr. Bryant, Mr. King signed various intake forms while he sat in the waiting room, one of which was an arbitration agreement.  Later, after seeing Dr. Bryant, Mr. King also signed several insurance forms.  Mr. King admitted he did not read any of the documents before he signed them, but claimed that even if he had read the arbitration agreement in its entirety, he would not have understood it. 

Mr. King proceeded with the surgery, which resulted in a host of complications in the months that followed, including limited use of his right leg.  Shortly thereafter, Mr. King filed a medical malpractice suit and Dr. Bryant and his practice then tried to compel arbitration pursuant to the intake form signed by Mr. King.  The trial court denied the petition to compel arbitration.  The North Carolina Court of Appeals affirmed the trial court's decision and Dr. Bryant and his practice appealed to the North Carolina Supreme Court.  

In affirming the lower court's decision that the arbitration agreement was unenforceable, the North Carolina Supreme Court focused on the relationship between Dr. Bryant and Mr. King at the time Mr. King signed the arbitration agreement.  The court held that a fiduciary relationship existed because Mr. King had placed special trust and confidence in Dr. Bryant by providing the practice with confidential medical information and because Mr. King relied on Dr. Bryant for his medical expertise and skill.  The court also noted that this fiduciary relationship existed independently of the customary physician-patient relationship.  Therefore, because Dr. Bryant and the practice had not fully disclosed to Mr. King the nature and import of the arbitration agreement, but instead simply presented it to him along with many other routine medical forms, they breached the fiduciary duty owed to Mr. King.

The King v. Bryant decision does not necessarily mean that physician practices should toss their arbitration agreement forms into the shredder or delete the arbitration provision from their other patient intake forms.  The North Carolina Supreme Court expressly stated that its decision should not be taken "to cast doubt upon the availability of physicians and patients, assuming that proper disclosure is made, to enter into appropriately drafted agreements" that include arbitration provisions.  Instead, the ruling seems to indicate that, because arbitration agreements substantially affect patients' legal rights, physician practices should fully disclose "the nature and import of the arbitration agreement" at the time it is presented to patients for signature. 

Although the decision was based on the existence of a fiduciary relationship between a physician and a patient, the North Carolina Supreme Court did not reach the issue of whether all health care providers are fiduciaries, so it is unclear whether health care providers other than physicians (such as dentists, optometrists, and hospitals) would have a fiduciary duty and, therefore, a duty to disclose to patients the import of the arbitration agreement.  Arguably, however, because patients usually provide most health care providers with confidential medical information and rely on those health care providers for health care expertise and skill, it is conceivable that a fiduciary duty could be extended to other health care providers.  So, to avoid Dr. Bryant's outcome, all health care providers, as part of the patient intake process, should carefully disclose to patients the existence of any arbitration provision contained in a patient intake form and the consequences of arbitration, including its binding nature and its substantial effect on the patient's legal rights.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ward and Smith, P.A. | Attorney Advertising

Written by:

Ward and Smith, P.A.

Ward and Smith, P.A. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.