Okay, this has happened to almost every orthodontist I know. For 1 reason or another, mom or dad is unhappy with some aspect of the treatment you rendered to junior. They really don’t want to sue you, but they really do want some, if not all, of their money back. Throughout your career, you have been told that you never give a patient back any money without first obtaining a release. The bottom line here is that if you give them back all or part of the fee, you want to ensure that they won’t then sue you on top of that. Fair enough. We all agree that an adult patient can sign a release that says something along the line of “in exchange for your return of X dollars, I promise not to sue you regarding the orthodontic treatment you rendered to me.” It’s a little more involved than that, but you get the picture. The legal question becomes, if the patient is a minor, can mom or dad, on behalf of junior, sign a release absolving the doctor of any negligent treatment? And if they do, is it binding on junior once he reaches the legal age of majority?
Hawkins v Peart , 37 P.3d 1062 (Sup. Ct. Utah, 2001), provides insight into this matter. The facts are simple. The kids want to go horseback riding. The parents must sign a release from liability for the kids to go. During the ride, a horse got spooked and threw the child off, resulting in a significant injury. Of course, the parents sue the riding company that provided the horses, claiming a number of negligent acts on their part. The riding company defends the claims by not only refuting all of the plaintiff’s allegations of negligence but also producing the signed release absolving it of any negligence. In addition, 1 clause in the release stated that, if the riding company suffered any monetary losses as a result of the suit, the parents signing would be required to indemnify the company for those losses. The trial court, on the issue of the release, held that a release for liability, signed by a parent on behalf of a child, is not binding on that minor; however, the indemnity provision was upheld. The appellate court affirmed the holding as far as the release was concerned but reversed the portion of the ruling pertaining to the indemnity provision. This appeal ensued.
In a case of this nature, the reason underlying the decision is primarily based on public policy considerations. The court looked at various statutes, codes, rules, and regulations that dealt with (1) a minor’s ability to disaffirm any contracts entered into before reaching the age of majority, (2) a parent’s right to delegate fundamental care as well as supervisory responsibilities to others for a minor child, (3) the general powers that guardians have over minors, and (4) the requirement that parents or legal guardians must appear on behalf of their minor children when they are parties to judicial proceedings. All of these statutory provisions relating to minor children had 1 thing in common: they all indicated “a general protective intent that, on balance, mitigated in favor of precluding parents from contractually releasing others from liability for injuring minors.”
As a general rule, releases from liability regarding negligence are acceptable as long as the person seeking the release is not engaged in an area of public service, and the negligent act was not caused by gross or wanton negligence. The court stated the following common law principle governing this matter.
It is generally held that those who are not engaged in public service may properly bargain against liability for harm caused by their ordinary negligence in performance of contractual duty; but such an exemption is always invalid if it applies to harm willfully inflicted or caused by gross or wanton negligence. (cit. omit.)
The court noted a distinction between preinjury and postinjury releases. Preinjury releases are generally looked at with greater suspicion than are postinjury releases. This is because a preinjury release tends to “remove an important incentive to act with reasonable care.” It also allows the person demanding the release to “evade the necessity of liability coverage and then shift the full burden of risk or harm to the other party.” This is contrasted with postinjury releases, when the negligence has already occurred, and, for the most part, any damages or injuries sustained are usually measurable since they are known.
Looking at cases from all across the country, the court noted that releases from liability are generally not allowed when the transaction in question has any of the following characteristics: (1) it concerns a type of business that is generally the subject of public regulation; (2) the person seeking to be released is engaged in performing an important public service that is often a matter of practical necessity for members of the public at large; (3) the person seeking to be released provides the service for all members of the public seeking that service; (4) because of the necessity of the service relative to the economic setting of the transaction, the person seeking to be released possesses a decisive advantage of bargaining strength against members of the public seeking the service; (5) because of the superior bargaining power, the person seeking to be released only offers the public an adhesion contract (my way or the highway) and does not allow for the possibility of the one seeking the service to purchase or pay additional reasonable fees to opt out of the release that would result in obtaining protection against any negligent acts; and lastly (6) as a result of engaging or participating in the service that is the subject of the transaction, the person or property of the person faced with the release is placed under the control of the seller and is subject to the risk of carelessness by either the seller or his agents.
The court then stated as plainly as possible that “a clear majority of courts treating the issue have held that a parent may not release a minor’s prospective claim for negligence.” The court also stated that “absent a court appointment, parents have no authority to release or compromise claims or causes of actions belonging to minors.” In order for a release to be found valid against a minor, “the minor or another person interested in the minor’s welfare may petition for the appointment of a conservator. Once appointed, a conservator may act without court authorization or confirmation to settle a claim by or against the protected minor by compromise, arbitration, or otherwise…[A] parent may act as a minor’s conservator, not as a matter of right, but only when appointed by the court.”
As to the issue regarding the indemnity clause, the general rule of law is that indemnity clauses are disfavored because “one might be careless of another’s life and limb, if there is no penalty for carelessness.” The court concluded that, since a parent cannot compromise a child’s legal rights via a release, an agreement to shift the source of compensation for any loss suffered by the negligent party to be paid by the parent creates “an unacceptable conflict of interest between a parent and the minor child.” Quoting a New York case, the court wrote the following.
We are extremely wary of a transaction that puts parent and child at cross-purposes and…tends to quiet the legitimate complaint of the minor child. Generally, we may regard the parent’s contract of indemnity…as an instrument that motivates him to discourage the proper prosecution of the infant’s claim…The end result is either the outright thwarting of our protective policy, or, should the infant ultimately elect to ignore the settlement and to press his claim, disharmony within the family unit. Whatever the outcome, the policy of the State suffers.
In other words, the court was saying that any indemnification for a negligent act committed by another on a child that is required to be reimbursed by the parent to the negligent person has the strong tendency to result in either inadequate compensation or family discord. In addition, such a provision is usually inconsistent with a parent’s duty to protect the best interests of that child. The court held that both the indemnity provision and the release of the minor’s legal right to seek redress on reaching the legal age of majority violated public policy and therefore could not stand.
From a practical perspective, practitioners and their office managers must realize that releases can only go so far. For an adult patient, they are fine. If the patient is unhappy with some aspect of treatment and wants the return of an amount of money, you now have a headache to deal with. The only question is how much are you willing to pay for the price of aspirin to make the headache go away. Assuming that you are willing to pay the price, do so—but only conditioned on receiving a written release from liability. (Whether the refunding of money constitutes an act that makes this transaction a reportable incident as far as the National Practitioner’s Data Bank is concerned is a matter for another column.)
However, for minors, you need to know that a release signed by a parent on behalf of a child is not binding on the minor once he or she reaches the legal age of majority. As a practical matter, most parents, once they sign a release and receive their money, are (for the most part but not always) relatively satisfied and quite often do not seek to discover their full legal rights regarding this matter. In these instances, the release in and of itself might just be the right price of aspirin, unless we are talking about a major migraine.
I usually don’t do this, but I am appending a sample release form for our readers to use. Suffice it to say that by doing so, neither I, the AJO-DO , nor the American Association of Orthodontists is offering you, the reader, any legal advice. This disclaimer further acknowledges that you are advised to seek legal counsel when preparing to use this form because there are several legal considerations that might come into play. However, I have given this form to doctors for 25 years with no blowback reported. As Tom Jones sang back in the 1970s: “Please release me, let me go.”