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I haven't seen a thread devoted to this on this forum, but I think it's worth a discussion. I've started noticing a trend in my locums contracts towards aggressive language within the Indemnification section. This section used to be a place where you'd find boilerplate language that absolved the locums agency and hospital from any financial liability from omissions in your history during credentialing, your status as a contractor vs employee if challenged, or in your filing of reimbursement etc. But I've watched the language greatly expand to what I consider a dangerous point. Here's an actual example from one of my recent offers:
"INDEMNIFICATION
Provider shall be solely responsible for, and shall indemnify, defend, and hold [Agency] and [Hospital] (including their respective employees, agents, and
affiliates) free and harmless from, any and all claims, damages, fines, penalties, losses, or lawsuits (including attorneys’ fees and expenses
incurred with respect thereto) (a) arising out of or relating to any act or omission of Provider, its employees or agents, and/or (b) based in whole
or in part on an allegation or determination (by Provider, its employees, any governmental agency, or any third party) that Provider or Provider’s
employees are employees (or joint employees or co-employees) of [Agency] or [Hospital]."
Part (a) of the language above is ridiculously broad. For instance, let's say you did a provisional pre-op on a patient that was moved out of your room before you ever actually saw them. The patient has a complication somewhere in the hospital course and, because your name was on the record, you are named as one of many defendants in the suit. Regardless of whether you were found at fault, or dropped from the suit, you could still be contractually bound to reimburse fees for the defense of the hospital or any of the other hospital employees in the suit.
According to my lawyer, if you live in a state like mine that holds contracts sacred, this clause also pulls the reimbursement out from under the usual caps of your malpractice or tort limits and into personal responsibility. Meaning there is essentially no limit to how much you may owe on a major suit. You have a target on your back for the hospital or their employees to recoup their court costs.
I have had mixed luck negotiating fair terms in this section. For the agency in the example above I was able to reach a even compromise, but other sites (USAP) were honestly kind of hostile about changing it.
The EM guys are well ahead of us about this (https://www.acep.org/siteassets/upl...cy-medicine-contracts---information-paper.pdf), but I think it's something really important we should all be aware of and resist.
"INDEMNIFICATION
Provider shall be solely responsible for, and shall indemnify, defend, and hold [Agency] and [Hospital] (including their respective employees, agents, and
affiliates) free and harmless from, any and all claims, damages, fines, penalties, losses, or lawsuits (including attorneys’ fees and expenses
incurred with respect thereto) (a) arising out of or relating to any act or omission of Provider, its employees or agents, and/or (b) based in whole
or in part on an allegation or determination (by Provider, its employees, any governmental agency, or any third party) that Provider or Provider’s
employees are employees (or joint employees or co-employees) of [Agency] or [Hospital]."
Part (a) of the language above is ridiculously broad. For instance, let's say you did a provisional pre-op on a patient that was moved out of your room before you ever actually saw them. The patient has a complication somewhere in the hospital course and, because your name was on the record, you are named as one of many defendants in the suit. Regardless of whether you were found at fault, or dropped from the suit, you could still be contractually bound to reimburse fees for the defense of the hospital or any of the other hospital employees in the suit.
According to my lawyer, if you live in a state like mine that holds contracts sacred, this clause also pulls the reimbursement out from under the usual caps of your malpractice or tort limits and into personal responsibility. Meaning there is essentially no limit to how much you may owe on a major suit. You have a target on your back for the hospital or their employees to recoup their court costs.
I have had mixed luck negotiating fair terms in this section. For the agency in the example above I was able to reach a even compromise, but other sites (USAP) were honestly kind of hostile about changing it.
The EM guys are well ahead of us about this (https://www.acep.org/siteassets/upl...cy-medicine-contracts---information-paper.pdf), but I think it's something really important we should all be aware of and resist.
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