Injuries and complications are unfortunate but sometimes unavoidable risks of many dental procedures and treatments. Complications can occur despite a dentist’s best efforts to avoid harming the patient. As a result, dentists and dental practices may turn to liability waivers to protect themselves from potential injury claims. However, liability waivers do not provide perfect protection for dental practices. Injured patients may retain the right to sue a dentist for negligent care.
If you’re a dentist who wants to incorporate liability waivers into your practice, contact Mahan Dental Law today for an initial consultation. Our goal is to help you develop a liability waiver form that protects you and also complies with applicable laws and public policy.
Understanding Liability Waivers
In a liability waiver, a party agrees not to hold a counterparty liable for any injuries or losses the party sustains due to the counterparty’s product or service. Parties may seek liability waivers when offering products or services with an inherent risk of injury. For example, a skydiving tour operator may require liability waivers before taking customers on skydives, or a fitness center owner may require a liability waiver from clients before giving them access to the facility’s heavy exercise equipment.
Dental practices may also use liability waivers with patients. In dentistry, a liability waiver may take the form of an informed consent document. An informed consent document will advise the patient of the proposed procedure, what treatments the dentist will administer (e.g., anesthesia), the potential injuries or complications the procedure can cause, and the risk for unforeseen outcomes or complications. A dental liability waiver may ask the patient to waive any liability for the dentist or dental practice for any injuries the patient suffers during the procedure. However, due to the complexities of professional liability, the enforceability of a dental liability waiver may pose a challenging legal question.
Can You Enforce Liability Waivers in Dentistry?
Unfortunately, liability waivers may have limited enforceability in dentistry. Most courts have held that patients may sue a dentist or dental practice for dental malpractice even if the patient signed a liability waiver before the procedure. Courts have expressed a reluctance to enforce liability waivers in dentistry because of the extensive governmental regulation of dental practice and the public policy of ensuring access to dental care without signing away the right to pursue compensation when a dentist provides negligent care.
However, the possibility of malpractice claims does not always mean a dentist or dental practice cannot enforce a liability waiver. A dentist or dental practice can work with an experienced attorney to draft a liability waiver whose scope complies with the restrictions imposed by state law on dental liability waivers. An enforceable liability waiver must meet several general criteria, including:
- Voluntariness: A patient must voluntarily sign the waiver without pressure or coercion.
- Conscionability: A liability waiver cannot include terms so one-sided as to make enforcing the agreement unfair; however, parties may have a significant bargaining disparity or the party presenting the agreement may refuse to negotiate its terms (a “take-it-or-leave-it” offer) without necessarily making the agreement unconscionable.
- Permissible under public policy: A liability waiver cannot ask a patient to waive risks that state law or public policy bars as a subject of a liability waiver.
Key Provisions of Dental Liability Waivers
A dental liability waiver may include several basic provisions, including:
- Description of the procedure and associated risks: The waiver should describe the treatment the dentist proposes to perform on the patient, including how the dentist will perform the procedure and whether the procedure will require associated treatments, such as the administration of anesthesia (e.g., local anesthesia, “laughing gas,” or total anesthesia). Waivers should also disclose all known risks and complications associated with the procedure that the patient might experience.
- Acknowledgement of patient understanding: The waiver form should include language under which the patient acknowledges that they understand the nature of the proposed procedure and its associated risks, and have had the opportunity to ask questions, seek a second opinion, and consider whether to proceed with the procedure.
- Voluntary consent to treatment: A waiver should also include the patient’s express voluntary consent to the treatment described in the waiver form.
- Release of liability for known and disclosed risks: Finally, a liability waiver will include language under which the patient agrees to release the dentist or dental practice from any liability for injuries or losses the patient sustains due to known and disclosed risks. However, a liability waiver may not release the dentist from liability for any injuries caused by their negligent actions.
Common Mistakes with Dental Liability Waivers
Some of the top mistakes that dentists and dental practices make when incorporating liability waivers into their practice include:
- Using generic templates: Each state has different laws and rules governing the use of liability waivers in dental practice. Using a standard template from the internet risks creating a waiver form that will not hold up in court.
- Not reviewing and revising waiver forms: Dentists and practices should regularly review and update their waiver forms to address changes in the law.
- Not obtaining informed consent: A dental practice should not rely solely on a liability waiver to obtain a patient’s informed consent to treatment. Instead, dentists should have a conversation with patients to discuss the details of the proposed procedure and its risks, giving the patient a chance to ask questions and give affirmative consent to treatment.
How Liability Waivers Work with Malpractice Insurance
Dentists should not view liability waivers as a substitute for malpractice insurance. Patients typically retain the right to pursue malpractice actions against dentists even if they signed a liability waiver. Furthermore, malpractice insurers may not view liability waivers as providing significant protection for themselves or their insured due to a patient’s right to pursue malpractice claims despite the existence of a waiver. However, dentists who incorporate liability waivers into their practices should ensure that their waiver form’s language complies with any terms or restrictions in their malpractice insurance policy.
Contact Our Firm Today to Learn More
If you’ve considered adopting liability waiver forms for your dental practice, you need knowledgeable legal guidance to ensure their enforceability to protect your business. Contact Mahan Dental Law today for an initial consultation with a dental practice attorney to discuss your legal options.
