Liability Waivers in Healthcare: Can They Protect You From Patient Accusations of Sexual Harassment?

It may sound like a good strategy for preventing sexual harassment lawsuits, but asking patients to waive the right to sue has major drawbacks.

Waivers appear everywhere, but many people misunderstand the actual legal implications of a waiver. Generally, a waiver is a type of contract where the signer gives up a known right, like the right to sue for damages. Though people sign waivers all the time, their enforceability varies greatly. 

As concerns in healthcare evolve, like increased worry about sexual harassment claims, practitioners may wonder if a waiver might offer any protection. Let’s examine the use of waivers, their enforcement, and the protections they offer by looking at one commonly used type of waiver­—the liability waiver.

Liability Waiver Basics

Liability waivers are the kind of waiver most often encountered in everyday life. You’ve probably encountered liability waivers when joining a gym, going skiing, or riding a rollercoaster. How this type of waiver works in practice is simple. Before riding a rollercoaster, a theme park operator may have riders sign a waiver acknowledging the risks of participating. This waiver might alternatively be a part of the ticketing process for entry to the theme park. 

The content of a liability waiver typically covers a list of “standard” injuries or risks commonly recognized when engaging in a particular activity. A theme park’s waiver, for example, might cover injuries such as heart attacks or whiplash. Then, if a rider rides the roller coaster and injury does occur, the theme park owner can use the rider’s signed waiver to protect themselves from liability for that injury.

Liability Waivers in Healthcare

In the healthcare context, providers may find liability waivers helpful for many reasons. Care providers and patients don’t tend to engage in a thorough and sophisticated contract negotiation process before treatment begins. Therefore, a waiver can serve as a simple and easy-to-use tool to help ensure patients grasp the risks of specific medical procedures and practices. Waivers can also help convey a patient’s rights and responsibilities when receiving treatment. Finally, a signed waiver can be an essential part of the paper trail for establishing that the patient gave informed consent.

If challenged in court, however, waivers vary in their enforceability. The enforceability of a waiver may depend on several different factors.

Clarity

Is the waiver clearly worded? Does it unambiguously express the intent of the parties? If a waiver appears too vague or doesn’t clearly absolve liability, a court might not consider it enforceable. 

Gross Negligence or Willful Misconduct

Waivers can’t protect healthcare providers from liability if their actions go far beyond the ordinary standard of care. This occurs when an injury results from a practitioner acting extremely recklessly, uncarefully, or unreasonably. Moreover, if evidence shows that a practitioner acted with an intent to do harm, a waiver will not protect them from liability. 

Contradictions With State Laws or Public policy

Waivers must comply with state laws and general public policy goals. For example, some states reject the idea that parents can sign away their children’s legal rights to sue for negligence. In this case, the court would not enforce a liability waiver covering the child and signed by the child’s parents.

Liability laws can be state-specific and varied. Therefore, it’s important for a drafter to have a thorough knowledge of state law.

Informed Consent

Did the parties have time to meaningfully review the waiver before signing? Like any contract, a waiver relies on the informed consent of the parties who have signed it. If an injured party can prove that they did not have the opportunity to review and willingly agree to the waiver’s provisions, a court may not enforce it.

Overall, a good waiver is carefully and narrowly worded. It takes into account what can and cannot be waived based on state law and public policy. A well-crafted waiver has a much better chance at being deemed enforceable by a court and protecting the service provider from liability. Just as important, good waivers can help establish understanding between providers and patients. 

Sexual Harassment Waivers

Some health providers, such as physical therapists, worry that their actions and intentions during treatment may be misinterpreted. To that end, can a provider use a waiver to prevent sexual harassment claims from being brought against them in the future?

Compatibility With Current Laws and Public Policy

Sexual harassment waivers in the doctor/patient relationship context have not been popularly examined in the law so far. However, many states do have existing laws against sexual harassment waivers in the workplace. These laws typically make any contract provision unenforceable if it prevents an employee from reporting or disclosing future sexual harassment claims. 

Similarly, while waivers preventing sexual harassment claims against a healthcare professional may not explicitly violate current laws, a court would likely hold them as unenforceable, viewing them as contrary to public policy or willful misconduct that cannot be waived.

Waivers as Deterrence for Lawsuits

Ultimately, for a waiver to be deemed unenforceable or enforceable, someone must bring it to the court. Having patients sign waivers prior to treatment may serve a deterrence function.

Many people believe, incorrectly, that a signed waiver prevents them from bringing a claim to court. As a result, they never pursue such a claim. This deterrence function may therefore serve the waiver’s intended purpose. However, even if using such a waiver is not explicitly illegal, it is arguably a bad business practice that might undermine trust, negatively affect the doctor/patient relationship, and hurt business.

Not all waivers are created equal. For some purposes, waivers can serve as a valuable tool to both protect healthcare practices from liability and help them communicate with patients. 

For the best chance at enforceability, consult with an experienced and knowledgeable attorney. Jackson LLP can prepare waivers compatible with the laws of the states in which the firm practices. To discuss your needs, schedule a free consultation.

This blog 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.