Check informed consent before trying waiver

A health care attorney cautions that you should not rush to use liability waivers until you have confirmed that your informed consent processes are the best they can be. All of the questions about whether waivers are valid in certain situations come down to whether the patient had a choice in the matter and truly understood what rights were being waived, notes Mark Kadzielski, JD, a health care attorney with Fulbright & Jaworksi in Los Angeles.

"The question will be whether this was a true informed consent process, whether the patient really had an opportunity to consider all the risks and benefits and then thoughtfully waive his rights to a jury trial, or the right to sue," he says. "The more time and the more explanations you gave to the patient, the more likely the court would uphold the waiver. If they just signed a form you shoved in front of them with no real discussion, that’s not going to be upheld."

In theory, you can ask the patient to give up as much of his rights as you want — including signing away all the right to sue you in any way for anything, no matter how egregious your actions, Kadzielski says. But when you ask for more, you’d better be prepared to work hard for it, he says.

"The more aggressive you want to be with the patient, the more time and thoughtfulness you have to put into the explanation process," he says. "That’s so true that it might even be a good idea to videotape your discussions so that when the patient claims you didn’t explain what rights they were giving up, you can prove otherwise. But if it’s on tape, you have to be certain it’s a process you want to show in court and have critiqued."

Kadzielski also cautions against the tendency to use a generic liability waiver you found elsewhere instead of devising one specifically for the situation in question.

"If you photocopy somebody else’s waiver on your letterhead and start handing it out, chances are not good that it actually says what you need it to say," he says. "This needs to be a more thoughtful process than that."