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Liability waivers are best used for voluntary activities or when patients refuse your clinician’s advice, says Jeffrey Driver, JD, MBA, chief risk officer with Stanford (CA) University Medical Center and president of the American Society for Healthcare Risk Management in Chicago. He suggests these categories:
• Elective procedures.
Liability waivers, or agreements to settle a case in mediation, are most appropriate for elective procedures in which the patient has been well informed of any risks and has the ability to forgo the procedure without any adverse effects, Driver says. "So they’re not going to be of much use in your emergency room," he says. "But for cosmetic procedures, you can tell the patients they have to sign the waiver or they can get their Botox somewhere else. You have the ability to be that aggressive, and the courts probably would hold up the waiver, because that is totally an elective procedure."
• Nonhealth-care activities.
Liability waivers also are useful in health care settings for situations other than treating patients, Driver says. Here’s an area in which the waivers are much more enforceable, and you’re missing a real opportunity to avoid some lawsuits if you don’t employ waivers, he says. If the hospital is hosting a fun walk or bike ride, participants should agree not to sue you. For instance, the auxiliary at Driver’s hospital wants to have a pony ride on hospital property as a fundraiser. But, of course, what sounds like a nice idea to most people causes a risk manager to envision children falling off the pony and angry parents suing the hospital. "I absolutely will get a waiver of liability in that case, and those are upheld in court," he says.
California law, like that in many states, draws a line at liability waivers for any service in the public interest or those that result from unfair bargaining. The idea is that you shouldn’t be able to force people to sign away their rights when you have them over a barrel. "But pony rides are not in the public interest, and there’s no unfair bargaining. It’s a dollar for a pony ride, and you have to agree not to sue us," he says. "But when you come to the emergency room, you have to come here for help, and it’s a service in the public interest. That’s the dividing line on enforceability."
• Informed refusal.
Waivers can be useful when a patient refuses the course of treatment or examination that clinicians consider the best option. If a patient refuses a liver biopsy because it would be too painful, Driver suggests that you should ask the patient to sign a liability waiver that acknowledges he or she is refusing the best care. "That’s a great use of a waiver of liability," he says. "If the patient says no, and there’s no trouble with it being an emergency situation, you can refuse to treat them and they can go get care somewhere else. I’ve actually done that."