Lawsuits & Liability

[FLLucinda]

Lets talk about the sticky side of our doula businesses for a minute. Liability insurance and lawsuits. I carry liability insurance through CM&F Group, NY,NY. That said....my brother who is an attorney looked at the contract I use....it's one a lot of us use and change it up to fit our own needs. He says it's a great contract but missing one clause.....ATTORNEY FEES if a doula is named in a "splatergun lawsuit." this is the type of lawsuit where everyone is named whether they had anything to do with it or not....they were just there. As we all know fivilous lawsuits happen all the time in the US and an attorney will go after any pocket they can. I don't know any of us here who can afford to lose our house, and total financial livlihod because we have $20,000 or more in attorney fees trying to protect ourselves because we were named in a splatergun suit. My brother insisted I add a clause to my agreement stating that if I am named in a lawsuit the client will pay all my attorney fees. I totally agree with this. It's the ugly business side of running your doula business. Ok....fast forward to my recent interview just this past Wednesday.... Everything went extremely well. I left the contract for she and her DH to read and we are to meet next week. They want to strike out the part about the attorney fees. What??? I can understand it to a certain point but also understand my own view that people can and will sue everyone around them for no reason at all. I wrote back that we can strike out that clause...however...I would require a "Hold Harmless" agreement to be signed in that they agree to not name me in a lawsuit or allow an attorney to do so. My brother totally agrees with this. He says that as doulas we do not realize how vulnerable we really are in the lawsuit department. I argued that I have never heard of a lawsuit against a doula...his response was typical attorney! "So you want to be the first?" I may have lost a potential client but also see that if someone does not want to sign that type of agreement they would be one that would not hesitate to sue me whether I did anything wrong or not.
All this said...I'm reading the CM&F website for PostPartum Provider "malpractice" insurance which is what birth doula's are covered under. I am waiting for a call back from them to clarify the statement "protects and defends you."
I'm in a real dilema about this! My brother knows what he's talking about but dang..... this scares clients off! What do you all think?!

[MamaMichelle]

Thank you for this post! I'm processing it all but I think that I would NOT want a client that wasn't willing to sign it because of that. BIG RED FLAG!

[Doula Lori]

I honestly don't know what to think about it! I can really see both sides. As a doula, I do want to be protected if someone starts a frivilous lawsuit. I don't want to pay attorney fees if I'm innocent. As a consumer, however, I can see how that would scare me off of doing business with someone. I don't think that I'd want to sign anything that said that I'd have to pay their attorney fees. What if someone actually DID something that was very wrong; I don't think it'd be fair for me to have to pay their fees, KWIM? I'm sure this is what your potential clients were thinking, too. I do have a Hold Harmless contract (I actually titled it "Labor Doula Services Waiver") that is included in addition to my regular contract, but it's wording doesn't mention attorney fees. It basically says they can't hold me liable, and none of my clients have had a problem with signing it, but I'm not really sure that it'd stand up in court. Geeze....what a quandry!

[Precious_Partum]

Lori, would you be willing to share with us what your "Hold Harmless" contract / "Services Waiver" looks like, or the wording it contains? How is this different from your basic contract? Would it be reasonable to include this wording on a basic contract, or does it have to be on a separate document?

Thanks!

[FLLucinda]

Lori, Is there any way I could take a look at your hold harmless agreement? I love the flowery way you put it! LOL. I'm not so subtle.
My mom tells me you all have a lot of snow and ice there in Ohio.... my parents and brothers live in Columbus....Grove City actually.

[joanna_b]

Quote:

Originally Posted by Doula Lori As a consumer, however, I can see how that would scare me off of doing business with someone. I don't think that I'd want to sign anything that said that I'd have to pay their attorney fees. What if someone actually DID something that was very wrong; I don't think it'd be fair for me to have to pay their fees, KWIM? I'm sure this is what your potential clients were thinking, too.

When I was about 13 weeks pregnant with my son, I decided to switch OBs. When I got to this new dude's office, I had to fill out all the normal paperwork and included was a form I had to sign stating that I would not sue him if something went wrong. I asked the receptionist what would happen if I didn't sign it and she said that he would refuse to see me. So I put down the clipboard and walked out of the office. There was no way I was going to sign that. I'm not a sue happy person by any means, but if something were to go wrong because of an error on his part, I would want him to be accountable for it. By making me sign something up front, it seemed to me like he had something to hide or that he could be less responsible because his butt was covered from being sued.

I would feel the same way if someone asked me to sign a form agreeing to pay their legal fees if I had to sue. I don't think it should be my responsibility at all. If anything, once the ruling comes down, the person responsible should be made to pay the legal fees of those who were involved but not at fault. I'm not sure if that's how it works in the real world, but that is what I would fight for. There has to be some kind of insurance to cover doula's legal fees, should they be involved in a lawsuit.

[FLLucinda]

I totally agree that the person responsible needs to pay all attorney fees....it doesn't usually work that way in the real world though. And I don't blame you for walking out of that doctors office.... I would have also. With doula's since we do not do anything medical we should not be able to be sued...unless a doula WAS practicing outside her scope. But again, that's not the way it works in the real world. Anyone can sue anyone they wish for whatever reason they wish.
Lori's hold harmless agreement sounds to be a good alternative.
I'm still waiting on a call from CM&F Group in New York who holds my insurance policy about attorney fees.

[ScootchsMom]

Here is my confusion on this - if you have liability insurance, doesn't that cover your legal fees? For example, we have general liability for our fire protection business. If something were to go wrong with an extinguisher because of a manufacturing error, or say a house burns down because someone used it incorrectly, it really has nothing to do with us, but we could still be named in a lawsuit, and our insurance company would have to handle the case.

Its also my understanding that any kind of hold harmless or promise not to sue type form will not stand up in court if a case is about negligence. Maybe someone has more info on that?

Liz

[MichelleS]

I'm subbing to this thread, definitely.

I, also, would love to see Lori's hold harmless contract, and read more responses on this topic.

In regard to Johanna, I would have walked out too!

[Doula Lori]

Here it is, ladies. I cannot remember where I got the original draft, but I did modify it some to fit my needs. I suppose that one could include something like this within their regular contract. I included the part about me not being legally affiliated with another practice because I often work closely with our local CNM (and am even seen in the office doing reception work from time to time). Because of me being a part of the CNM's office in one role, I thought it important for my clients to realize that my doula services are not directly tied to their CNM's care. Hey... If anyone reads this and thinks that something ought to be changed, I'm all open for suggestions. For what it's worth, though, this is what they sign in addition to the regular contract. I usually staple it behind the contract and it thus looks like just an addition to it. If anyone does like it, feel free to copy and/or modify and use it.
-------------------------------

Labor Doula Services Waiver

"We recognize that _____________ is a Certified Labor Doula (labor support specialist) trained to provide informational support and assist with the physical and emotional demands of labor and childbirth. She may give informational support based upon published evidence based research concerning benefits & risks of procedures and treatments, but will not advise her clients to take or not take action based upon such information. It is the clients’ responsibility to consult with their midwife/physician about such information before making decisions concerning the prenatal, labor, childbirth, and postpartum periods. The following of such information and accepting comfort measures are solely at the clients’ discretion and _____________ shall not be held liable for her clients’ decisions. She is not a medical professional and therefore will make no medical decisions nor perform medical assessments or procedures. We also recognize that childbirth is a natural and unpredictable process and may not go as we hope or plan; in this arena we understand that my doula will act with reasonable care for the mother and baby’s well being, but may not be able to alter the course of labor or its outcomes."

________________ provides an independent service and is not legally affiliated with any Hospital, Midwifery, or Physician’s practice.


Mother’s Signature ____________________________________ Date ____________

Partner’s Signature ____________________________________ Date ____________

Partner’s Relationship to Mother_____________________________

Doula’s Signature _____________________________________ Date ____________
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ETA: A doula friend's attorney brother has since taken a look at the form since this was originally posted. He said that he thought it would stand up in court, so it couldn't hurt to use it, IMO.

[MamaMichelle]

Just starting out and this thread scared the crap out of me! Thanks Lori!

[FLLucinda]

Quote:

Originally Posted by MamaMichelle030407 Just starting out and this thread scared the crap out of me! Thanks Lori!

I'm sorry Michelle, My intent was not to scare anyone. I'm just starting out too and trying to cover all bases in a sometimes unpredictable field and lawsuits happen.
I really like the way Lori handles this! Thanks Lori!!

[Doula Lori]

Quote:

Originally Posted by Precious_Partum How is this different from your basic contract? ...

I just realized that I forgot to answer this question.


Basically, my basic contract addresses the Doula's Responsibilities (list of services included, explains on call time, explains what I do/don't do as a doula, home/hospital support, etc.), the Client's Responsibilities (informing caregiver of their doula, contacting me for the birth, paying fee before doula can consider herself on call, etc.), Fee (fee breakdown/payment due dates, etc.), and a "yes" or "no" Doula Mentoring area for her to check regarding whether or not she gives permission for me to bring a shadowing doula. Like I said earlier, though, I suppose that one could add in a Hold Harmless clause to the body of the main contract if she wants.

[Doula Lori]

Quote:

Originally Posted by FLLucinda My mom tells me you all have a lot of snow and ice there in Ohio.... my parents and brothers live in Columbus....Grove City actually.

Yep, we do. The roads are pretty slick here today, and it's a good day to stay home. "A lot" is a subjective word, though. I have lived in Upstate NY in the "snow belt" off of Lake Ontario before, and we have gotten 200" of the white stuff in one year, so Ohio doesn't get anywhere near that much. I will say that I'd be happy for it to NOT snow anymore; I'm ready for spring!

[Doula Lori]

Quote:

Originally Posted by ScootchsMom Its also my understanding that any kind of hold harmless or promise not to sue type form will not stand up in court if a case is about negligence. Maybe someone has more info on that?

I have heard this before, too, but never from an attorney so I really don't know. I just figured that it couldn't hurt to include one either way.

Quote:

Originally Posted by FLLucinda I really like the way Lori handles this! Thanks Lori!!

Thanks! I'm just wondering if your brother would tear it all apart, though! I will say that it wasn't my idea; I just remembered that I got it from another doula who was leaving doula-dom and had given me some of her things when I was just starting out. I modified it to better fit my me and my business. Again, I really am not sure if it would stand up in court, but I doubt that it'd hurt anything to at least have my clients sign it.