More and more it seems like we are being forced to sign exculpatory clauses in contracts and agreements. These are so-called “hold harmless” agreements, where businesses compel us to agree not to sue them if we are injured on their premises or by their negligent acts. These contracts are usually used for higher-risk businesses, like extreme sports vendors or facilities where sports or recreational activities will take place.
The use of these agreements appears to be spreading, however, if a recent case is any indication. The case involves a family that signed a hold harmless agreement with their doctor.
Exculpatory Clause Tries to Waive Malpractice Claims
The patient in the case was undergoing spinal fusion surgery, when her doctor severed her ureter during the procedure. Obviously, this was not the intended outcome of the surgery, and thus she filed suit for medical malpractice.
Her doctor countered by pointing to a hold harmless agreement that she had signed before the procedure. The clause said that (1) the doctor did not have malpractice insurance, (2) the patient will not sue the doctor “for any reason,” and (3) the patient agrees that the doctor practices medicine in accordance with “community standards.”
The trial court dismissed the lawsuit, saying that the hold harmless was unambiguous and binding and thus the patient had waived her right to sue for malpractice. The patient appealed the decision.
Appellate Court Reviews the Contract
The appellate court began its analysis by pointing out that clauses that waive a party’s right to sue must be clear and unambiguous and written in a way that normal people could understand. If a party is contracting away the right to sue for negligence, that must also be clear. Usually that means including language that waives a party’s own negligence in the release. However, the Court noted there have been cases that say that a hold harmless is enforceable even if the actual word “negligence” is not used.
The Court found the exculpatory clause in this case to be ambiguous, and actually found that it contradicted itself. The problem with the contract was the third sentence of the release, related to the acknowledgement that the doctor would practice in accordance with community standards.
Contradiction Means Clause is Unenforceable
The Court felt that this language contradicted the rest of the release because it could be read by consumers to mean that they were only waiving injuries that would occur even if the doctor was not negligent.
Put another way, in medicine, sometimes bad results can happen even if the doctor does nothing wrong because medicine is often imperfect. A patient can have a bad outcome to a medical procedure even with the best doctor doing the best job possible.
Waiving the right to sue when the doctor does a perfect job, but something goes wrong, is different then waiving the right to sue for the doctor’s own negligence. The court found that the release could be read as waiving only the former scenario.
Courts Read Hold Harmless Clauses Carefully
Courts often take apart these agreements and read them carefully. For example, in one case, a business said that they would use “every reasonable precaution,” but that accidents would “still happen,” and then attempted to force consumers into waiving their rights to sue. The court found that clause unenforceable because it could be read to mean that the consumer was only waiving claims where every reasonable precaution had been taken—not waiving every claim for negligence.
In another case, a school tried to get a student to sign away his rights to sue for participating in a sport. The waiver listed the inherent dangers of the sport, and stated that athletes who play assume the risk for their own injuries and thus, agree not to sue. The Court found that clause could be read to waive only injuries inherent in the sport the athlete was playing—not a waiver of all negligence of any kind.
Use in Malpractice Cases is Cause for Concern
Although in this case, the court read the exculpatory clause strictly and invalidated it on the basis of ambiguity, exculpatory clauses still can and do cause problems for victims all the time. The fact that these clauses are starting to show up in the context of medical treatment is troubling. The unique relationship between a patient and a doctor is different than that of a customer and business.
If you do not like an exculpatory clause that the local Crossfit gym wants you to sign, for example, you can go to another gym or get exercise another way. But you may not want to or be able to simply find another doctor to treat you, and nor should you have to just to avoid an exculpatory clause.
Courts do consider the “bargaining power” of parties when deciding if exculpatory clauses are enforceable. However, that is usually in the context of public utilities or some greater public function. It is possible that, if tested, courts would find that medical services are a vital public function, and thus, prohibit them.
Have an Attorney Review Hold Harmless Clauses
Because many courts have found these clauses enforceable even when they do not say that a consumer is waiving acts of negligence, it can be hard to simply read an exculpatory clause and see if it is enforceable or not.
There is no bright line test to see if a clause is unambiguous and thus, unenforceable. As more cases interpret differently worded clauses, the analysis is becoming increasingly difficult.
If you are injured as a result of medical malpractice, make sure you anticipate every possible defense and have an attorney review every document you sign. Contact Brill & Rinaldi today about a free consultation to discuss whether you may have a medical malpractice lawsuit available to you.