Can Adding Education to Your Clinical Practice Increase Your Liability?

It’s fulfilling to educate others in your field. But avoid the legal risks that can come with teaching continuing education classes, speaking at conferences, or sharing online content.

In addition to treating patients, many healthcare providers enjoy teaching treatment modalities, innovative ideas, and the latest research. And it’s common for providers to integrate educational offerings into their professional practices. For example, you may offer continuing education (CE) webinars. Or perhaps you host professional association events at your clinic, speak at conferences, or share articles and videos online. 

(See our related article, “TikTok Takeover: Legal Considerations for Posting Healthcare Videos.”)

These activities can be personally and professionally fulfilling. They can also enhance your career and promote your services. However, before you make them a regular part of your practice, consider whether they create any additional legal risk for you, your license, or your business.

Do You Need Disclaimers?

What if someone misinterprets your presentation, and their misunderstanding guides their clinical practice? Or what if you perform a live demonstration of a hands-on modality on an attendee, and they misconstrue their relationship with you and believe you to be their contractor or employee (or vice versa)? 

It’s important that your words are interpreted as you mean them. But you can’t control how others respond, so clarifying that you offer no guarantees of business success or clinical results is essential. 

If you’ve ever attended a professional conference, you likely agreed to myriad terms and conditions when you registered (and you probably didn’t read them). The terms and conditions typically contain disclaimers — not unlike those you use on your website, social media, and emails — to ensure that the conference hosts aren’t responsible for attendees’ takeaways from the event.

Likewise, you can use a disclaimer in your course, lecture, or article to:

• clarify the purpose; 
• assert its educational (non-clinical) intent; and 
• note that it does not create any provider-patient relationship. 

The wording and format of your disclaimer will depend upon the context, activities, risk tolerance, and intended audience. 

Some professional association websites already contain disclaimers. You can still provide an additional one to run with any article you submit. Meanwhile,  if you’re teaching a CE course at your practice, you could ask participants to sign a disclaimer as they arrive. 

(See our article, “Email and Social Media Disclaimers for Health Professionals.”)

A related note about conferences or other events hosted by a third party: the organizers might reframe or paraphrase your presentation description for their program. Ideally, you should assert final editorial control over the wording of any summaries or promotional blurbs. You might also consider whether you want to share your slides in advance or withhold them entirely so they don’t land on the internet, where they’re subject to misinterpretation by the public.  

Creating a Separate Business Specifically For Your Educational Activities

If you do more than dabble as an educator, consider starting a new business entity through which you conduct your educational activities. Some states will permit you to perform only licensed professional services through your existing professional limited liability company (PLLC) or professional corporation (PC). But even if your state doesn’t prohibit you from offering non-licensed educational services through your professional entity, a separate entity can help reduce your practice’s liability.

Say that you treat patients through your PLLC. You’re also a speaker at a patient advocacy event, where your title and slides proudly announce your affiliation with your PLLC. At the event, you answer specific attendees’ questions. Is it possible they might believe that you’ve entered into a patient-provider relationship? Perhaps they don’t expect you to begin treating them, but might they believe you’ll keep the information they shared confidential? 

It’s risky when the lines become blurry for either party in a patient-provider relationship. Many professional rules of conduct defer to a patient’s perception of whether a patient-provider relationship exists. They also require that providers maintain firm boundaries around their patients to avoid intermingled professional-personal relationships.

One way to address this is to create a non-professional business entity, such as a limited liability company (LLC), and use it solely for education-related activities. This signals to the public and your immediate audience that this work is separate from your licensed services. Further, you can enter into authorship and speaking engagement contracts through this new entity rather than through that of your practice. 

The Right Liability Insurance

Your practice likely maintains a robust professional liability insurance policy. But does that policy cover claims arising from situations beyond patient care? For example, if a provider misapplies a modality you taught during a weekend course at your practice, does your insurance cover any claims against you? What if you injure an attendee during a live, hands-on demonstration? Or, what if someone slips on a banana peel in your lobby and sues you for their injuries?

First, it’s crucial to understand the difference between professional liability and commercial general liability insurance. While professional liability policies cover practice-related claims, they typically do not cover claims that arise from general business operations (e.g., a slip-and-fall, which could happen in any business). For claims that arise from operating a business, you’ll usually need commercial general liability insurance.

Second, obtaining coverage for the right individuals or entities is crucial. Do your insurance policies cover your business, your employees, or just you? If you lease space, do you have appropriate insurance to cover your potential losses as a renter? If you created a separate business for your educational activities, did you buy separate insurance or have it added to your existing policies?

You should review your policies and understand what coverage you do and don’t have. Never rely on an insurance broker’s interpretation of your policy — read it yourself to verify that it contains the coverage you need.

Protecting Intellectual Property

Many providers who teach CE courses or speak at conferences create their own educational materials or develop their own techniques and resources. While you may be eager to share, how can you protect your intellectual property? This can be frustrating for innovative providers who dedicate significant time, energy, and education to broadening their skills and teaching others what they’ve learned. 

Intellectual property is a “creation of the mind.” The creation might be written works, designs, symbols, names, and other inventions protected by various legal mechanisms. The kind of creation you’re trying to safeguard will dictate the intellectual property protections available to you. For example:

• A patent may protect a new product or process that provides, in general, a new way of doing something or treating patients.
• A trademark may protect a recognizable sign, design, or expression you want to formally associate with your practice or business. 
• A copyright may protect the wording in a piece of writing for your website or a professional publication.

Remember that intellectual property protections generally do not protect works or ideas already in the public domain. Further, because you cannot claim ownership over general information-sharing, it can be difficult to impose intellectual property protections on hands-on modalities, treatment techniques, and similar concepts. 

Need Legal Help? 

Whether you need a disclaimer, have questions about your insurance coverage, or want to create a new business for your educational programs, a healthcare attorney can help to steer you toward the most protective and streamlined solution for your practice.

Our attorneys are experienced in supporting independent healthcare practices as they expand into new avenues of opportunity. If we are licensed in the state where you do business, you can schedule a consultation to discuss your needs further.

This article is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader. It should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.